INTERIM REPORT ON THE ADMINISTRATIVE LAW,

PROCESS AND PROCEDURE PROJECT FOR THE

21ST CENTURY

COMMITTEE PRINT

SUBCOMMITTEE ON 

COMMERCIAL AND ADMINISTRATIVE LAW

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

DECEMBER 2006

Committee Print No. 10

Printed for the use of the Committee on the Judiciary

(

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

INTERIM REPORT ON THE ADMINISTRATIVE LAW, PROCESS AND

PROCEDURE PROJECT FOR THE 21ST CENTURY

U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

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31–505 PDF 2007

INTERIM REPORT ON THE ADMINISTRATIVE LAW,

PROCESS AND PROCEDURE PROJECT FOR THE

21ST CENTURY

COMMITTEE PRINT

SUBCOMMITTEE ON 

COMMERCIAL AND ADMINISTRATIVE LAW

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

DECEMBER 2006

Committee Print No. 10

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 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL ISSA, California 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

CHRIS VAN HOLLEN, Maryland 

DEBBIE WASSERMAN SCHULTZ, Florida

PHILIP G. KIKO, General Counsel-Chief of Staff 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW

CHRIS CANNON, Utah Chairman

HOWARD COBLE, North Carolina 

TRENT FRANKS, Arizona 

STEVE CHABOT, Ohio 

MARK GREEN, Wisconsin 

J. RANDY FORBES, Virginia 

LOUIE GOHMERT, Texas 

MELVIN L. WATT, North Carolina 

WILLIAM D. DELAHUNT, Massachusetts 

CHRIS VAN HOLLEN, Maryland 

JERROLD NADLER, New York 

DEBBIE WASSERMAN SCHULTZ, Florida

RAYMOND V. SMIETANKA, Chief Counsel 

SUSAN A. JENSEN, Counsel 

BRENDA HANKINS, Counsel 

MIKE LENN, Full Committee Counsel 

STEPHANIE MOORE, Minority Counsel 

(III)

T A B L E O F C O N T E N T S 


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A P P E N D I X : H E A R I N G S

U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001

30–838 PDF 2006

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 


111406.AAB
192

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL ISSA, California 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

CHRIS VAN HOLLEN, Maryland 

DEBBIE WASSERMAN SCHULTZ, Florida

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 

TRENT FRANKS, Arizona 

STEVE CHABOT, Ohio 

MARK GREEN, Wisconsin 

J. RANDY FORBES, Virginia 

LOUIE GOHMERT, Texas 

MELVIN L. WATT, North Carolina 

WILLIAM D. DELAHUNT, Massachusetts 

CHRIS VAN HOLLEN, Maryland 

JERROLD NADLER, New York 

DEBBIE WASSERMAN SCHULTZ, Florida

RAYMOND V. SMIETANKA, Chief Counsel 

SUSAN A. JENSEN, Counsel 

BRENDA HANKINS, Counsel 

MIKE LENN, Full Committee Counsel 

STEPHANIE MOORE, Minority Counsel 


111406.AAC
193

(III)

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


111406.AAD
194


111406.AAE
195

(1)

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 


111406.AAF
196

2

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 COM- MERCIAL 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 Con- gress—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 


111406.AAG
197

3

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. 


111406.AAH
198

4

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. 


111406.AAI
199

5

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 


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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. 


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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 


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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:]


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PREPARED STATEMENT OF MORTON ROSENBERG


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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/


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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. 


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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


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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, 


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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:]


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PREPARED STATEMENT OF T.J. HALSTEAD


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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 probVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 00243 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230

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lem 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 


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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——


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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. 


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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.] 


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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


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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


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Æ


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U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001

28–907 PDF 2006

THE 60TH ANNIVERSARY OF THE ADMINISTRATIVE PROCEDURE ACT: WHERE DO WE GO

FROM HERE?

HEARING BEFORE THE

SUBCOMMITTEE ON 

COMMERCIAL AND ADMINISTRATIVE LAW OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

JULY 25, 2006

Serial No. 109–133

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 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL ISSA, California 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

CHRIS VAN HOLLEN, Maryland 

DEBBIE WASSERMAN SCHULTZ, Florida

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 

TRENT FRANKS, Arizona 

STEVE CHABOT, Ohio 

MARK GREEN, Wisconsin 

J. RANDY FORBES, Virginia 

LOUIE GOHMERT, Texas 

MELVIN L. WATT, North Carolina 

WILLIAM D. DELAHUNT, Massachusetts 

CHRIS VAN HOLLEN, Maryland 

JERROLD NADLER, New York 

DEBBIE WASSERMAN SCHULTZ, Florida

RAYMOND V. SMIETANKA, Chief Counsel 

SUSAN A. JENSEN, Counsel 

BRENDA HANKINS, Counsel 

MIKE LENN, Full Committee Counsel 

STEPHANIE MOORE, Minority Counsel 


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C O N T E N T S 

JULY 25, 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 

Professor William West, The Bush School of Government and Public Service, 

Texas A&M University, College Station, TX 

Oral Testimony ..................................................................................................... 46

Prepared Statement ............................................................................................. 48

Professor Marshall Breger, The Catholic University of America—Columbus 

School of Law, Washington, DC 

Oral Testimony ..................................................................................................... 53

Prepared Statement ............................................................................................. 56

Professor M. Elizabeth Magill, University of Virginia School of Law, Charlottesville, VA 

Oral Testimony ..................................................................................................... 69

Prepared Statement ............................................................................................. 73

Professor Cary Coglianese, University of Pennsylvania Law School, Philadelphia, PA 

Oral Testimony ..................................................................................................... 77

Prepared Statement ............................................................................................. 81

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

Material submitted by Chairman Cannon from the Federal Administrative 

Law Judges Conference ....................................................................................... 5

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Revised Prepared Statement of Professor M. Elizabeth Magill, University 

of Virginia School of Law, Charlottesville, VA 107

Response to Post-Hearing Questions from Professor William West, The Bush 

School of Government and Public Service, Texas A&M University, College 

Station, TX ............................................................................................................ 112

Response to Post-Hearing Questions from Professor Marshall Breger, The 

Catholic University of America—Columbus School of Law, Washington, DC 116

Response to Post-Hearing Questions from Professor M. Elizabeth Magill, University of Virginia School of Law, Charlottesville, VA ...................................... 122

Response to Post-Hearing Questions from Professor Cary Coglianese, University of Pennsylvania Law School, Philadelphia, PA .......................................... 124


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(1)

THE 60TH ANNIVERSARY OF THE ADMINISTRATIVE PROCEDURE ACT: WHERE DO WE 

GO FROM HERE? 

TUESDAY, JULY 25, 2006

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON COMMERCIAL

AND ADMINISTRATIVE LAW, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met, pursuant to notice, at 11:30 a.m., in 

Room 2141, Rayburn House Office Building, the Honorable Chris 

Cannon (Chairman of the Subcommittee) presiding. 

Mr. CANNON. The Committee on the Judiciary’s Subcommittee on 

Commercial and Administrative Law will come to order. 

The current Federal regulatory process faces many significant 

challenges. Just last week, the Subcommittee on Commercial and 

Administrative Law conducted a hearing on legislation aimed at 

addressing various loopholes and recurrent inefficiencies involving 

the Regulatory Flexibility Act of 1980. As this hearing revealed, 

these shortcomings in the regulatory process translate into real 

costs that are borne by every American. 

Other problematic issues that have arisen over the years in the 

area of administrative law and procedure include the absence of 

transparency at certain stages of the rulemaking process, the increasing incidence of agencies publishing final rules without having 

them first promulgated on a proposed basis, the stultification of 

certain aspects of the rulemaking process, and the need for more 

consistent enforcement by agencies. 

Given the fact that the Administrative Procedure Act was enacted more than 60 years ago, a fundamental question that arises 

is whether the act is still effective in the 21st century. 

To help us answer that question, House Judiciary Committee 

Chairman Sensenbrenner, with the active support of Ranking 

Member Conyers, last year asked our Subcommittee to spearhead 

the Administrative Law Process and Procedure Project. 

With the objective of conducting a nonpartisan, academically 

credible analysis, the project will culminate with the preparation of 

a detailed report with recommendations for legislative proposals 

and suggested areas for further research to be considered by the 

hopefully soon-to-be reactivated Administrative Conference of the 

United States. 

As many of you know, ACUS was an independent agency that 

served as a think-tank and made numerous recommendations that 


072506.AAF
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2

improved efficiency, adequacy, and fairness of the procedure used 

by agencies to carry out administrative programs. We are particularly pleased that Professor Breger, who previously served 6 years 

as the chairman of ACUS, is here to share his views on the state 

of the APA, especially in light of his experience with ACUS. 

Today’s hearing is one of a series of programs and hearings that 

our Subcommittee has conducted as part of this project. In addition 

to the Regulatory Flexibility Act, the Subcommittee conducted a 

hearing on the Congressional Review Act, as well as a hearing on 

the project itself. 

The Subcommittee has also cosponsored two symposia as part of 

the project. The first symposium, held last December, focused on 

Federal e-Government initiatives. This program, chaired by Professor Coglianese, examined the executive branch’s efforts to implement e-rulemaking across the Federal Government. Professor 

Coglianese will provide a summary of that symposium for us today, 

as well as an update on subsequent developments, especially with 

respect to the Government-wide Federal docket management system. 

The Subcommittee’s second symposium examined the role of 

science in the rulemaking process. Issues considered at that program included OMB’s recent initiative dealing with regulatory 

science and the role of science advisory panels. 

A further symposium is planned for September 11, 2006, which 

will examine such issues as the respective roles that the executive 

and legislative branches play in the rulemaking process. As part of 

the project, several studies are also being conducted. One of these 

studies, which another of our witnesses, Professor Bill West, will 

discuss today, examines how agencies develop proposed rules. 

While the APA generally requires agencies to involve the public 

in the rulemaking process by publishing notices of proposed rulemaking to which the public can submit comments, critical decisions 

regarding proposed rules are often made in the months and perhaps even years before rules are published. Surprisingly, little is 

known about how agencies actually develop these rules. Professor 

West’s study will shed some light on this heretofore unexamined 

area of the rulemaking process. 

At this time, I would like to extend, on behalf of the Subcommittee, our thanks to the Congressional Research Service for 

funding this very much needed research and for its role, as particularly exemplified by Mort Rosenberg and Curtis Copeland, in coordinating this and other research endeavors for the project. As 

Professor Magill will later explain, the need for empirical research 

is not being met. This gap only emphasizes the need to reactivate 

ACUS. 

I now turn to my colleague, Mr. Watt, the distinguished Ranking 

Member of the Subcommittee, and ask him if he has any opening 

remarks. 

[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

The current federal regulatory process faces many significant challenges. Just last 

week, the Subcommittee on Commercial and Administrative Law conducted a hearVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 00300 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230

072506.AAG
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3

ing on legislation aimed at addressing various loopholes and recurrent inefficiencies 

involving the Regulatory Flexibility Act of 1980. As this hearing revealed, these 

shortcomings in the regulatory process translate into real costs that are borne by 

every American. 

Other problematic issues that have arisen over the years in the area of administrative law and procedure include the absence of transparency at certain stages of 

the rulemaking process, the increasing incidence of agencies publishing final rules 

without having them first promulgated on a proposed basis, the stultification of certain aspects of the rulemaking process, and the need for more consistent enforcement by agencies. 

Given the fact that the Administrative Procedure Act was enacted more than 60 

years ago, a fundamental question that arises is whether the Act is still effective 

in the 21st Century. 

To help us answer that question, House Judiciary Committee Chairman Sensenbrenner—with the active support of Ranking Member Conyers—last year asked our 

Subcommittee to spearhead the Administrative Law, Process and Procedure Project. 

With the objective of conducting a nonpartisan, academically credible analysis, the 

Project will culminate with the preparation of a detailed report with recommendations for legislative proposals and suggested areas for further research to be considered by the hopefully soon-to-be reactivated Administrative Conference of the 

United States. 

As many of you know, ACUS was an independent agency that served as a think 

tank and made numerous recommendations that improved the efficiency, adequacy, 

and fairness of the procedure used by agencies to carry out administrative programs. We’re particularly pleased that Professor Breger, who previously served six 

years as the Chairman of ACUS, is here to share his views on the state of the APA 

especially in light of his experience with ACUS. 

Today’s hearing is one of a series of programs and hearings that our Subcommittee has conducted as part of this Project. In addition to the Regulatory Flexibility Act, the Subcommittee conducted a hearing on the Congressional Review Act 

as well as a hearing on the Project itself. 

The Subcommittee has also cosponsored two symposia as part of the Project. The 

first symposium, held last December, focused on federal e-government initiatives. 

This program, chaired by Professor Coglianese (pronounced ‘‘Co-lone-niece’’), examined the Executive Branch’s efforts to implement e-rulemaking across the federal 

government. Professor Coglianese will provide a summary of that symposium for us 

today as well as an update on subsequent developments especially with respect to 

the government-wide Federal Docket Management System. 

The Subcommittee’s second symposium examined the role of science in the rulemaking process. Issues considered at that program included OMB’s recent initiatives dealing with regulatory science and the role of science advisory panels. 

A further symposium is planned for September 11, 2006, which will examine such 

issues as the respective roles that the executive and legislative branches play in the 

rulemaking process. 

As part of the Project, several studies are also being conducted. One of these studies, which another of our witnesses—Professor Bill West—will discuss today, examines how agencies develop proposed rules. 

While the APA generally requires agencies to involve the public in the rulemaking 

process by publishing notices of proposed rulemaking to which the public can submit 

comments, critical decisions regarding proposed rules are often made in the months 

and perhaps even years before rules are published. Surprisingly, little is known 

about how agencies actually develop these rules. Professor West’s study will shed 

some light on this heretofore unexamined area of the rulemaking process. 

At this time I would like to extend—on behalf of the Subcommittee—our thanks 

to the Congressional Research Service for funding this very much needed research 

and for its role, as particularly exemplified by Mort Rosenberg and Curtis Copeland, 

in coordinating this and other research endeavors for the Project. As Professor 

Magill will later explain, the need for empirical research is not being met. This gap 

only emphasizes the need to reactivate ACUS.

Mr. WATT. Thank you, Mr. Chairman. 

I thank the Chairman for convening this hearing and for the 

very important and strong and committed leadership role that he 

has played in taking the charge of our Chairman, Mr. Sensenbrenner, and the Ranking Member, seriously and studying this 

area. 


072506.AAH
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4

Today, as he has indicated, we will hear from noted scholars on 

various aspects of the Administrative Procedure Act. APA is as important now as it was when it was first enacted in 1946. From Administration to Administration, whether Democratic or Republican, 

the role of the administrative agencies in our political system cannot be underestimated. 

Although recently new entities have emerged to compete for the 

title of fourth branch of Government, such as the media, lobbyists 

and corporate interests, of course, there is no doubt that our administrative agencies continue to exercise power officially reserved 

for the first three branches, or power not defined by the Constitution at all. 

The Administrative Procedure Act is a necessary tool to ensure 

that the power conferred upon the agencies is not abused and that 

it is exercised efficiently and fairly. Our rapidly changing technological landscape requires that we look to see whether the APA requires modernization to ensure that fairness and efficiency remain 

viable. 

So I look forward to hearing from the witnesses about the various developments in the area of administrative rulemaking and 

the regulatory process, with an eye toward improving and strengthening the process. 

My staff person has just reminded me that if the APA is 60 years 

old, it is a baby-boomer. So we need to be researching our own 

roles. Maybe we have two baby-boomers here, trying to figure out 

what to do about another baby-boomer. So everybody is studying 

age and growing old. It is time that we do it on the APA. 

Thank you. I yield back. 

Mr. CANNON. I thank the gentleman. 

Without objection, the gentleman’s statement will be placed in 

the record. Hearing no objection, so ordered. 

Without objection, all Members may place their statements on 

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 Members have 5 legislative days 

to submit written statements for inclusion in today’s hearing 

record. Hearing no objection, so ordered. 

Some of the witnesses have asked for additional time to submit 

more formal statements. We appreciate your willingness to be here, 

and in a couple of cases on relatively short notice, and so I ask 

unanimous consent that the witnesses be allowed 5 days within 

which to submit more formal statements. Hearing no objection, so 

ordered. 

At this point, I would like to submit on unanimous consent a 

statement from the Federal Administrative Law Judges Conference 

for inclusion in the record. Hearing no objection, so ordered. 

[The material referred to follows:]


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Mr. CANNON. I am now pleased to introduce the witnesses for today’s hearing. 

Our first witness is Dr. Bill West of the Bush School of Government and Public Service at Texas A&M University. A 1971 graduate of the United States Military Academy, Dr. West earned his 

Ph.D in political science at Rice University. Currently, he teaches 

public policy administration at the Bush School. He also serves as 

the school’s director of the Master in Public Service and Administration program. Dr. West has authored two books and published 

numerous articles. 

Our next witness is Marshall Breger, who is a professor of law 

at the Columbus School of Law at the Catholic University of America and was my chief of staff Matt Iandoli’s professor while he studied at Catholic. 

Professor Breger has had a diverse career. From 1993 to 1995, 

he was a senior fellow at The Heritage Foundation. During the 

prior Bush administration, he served as solicitor of labor, the chief 

lawyer for the Labor Department. In 1992, he served concurrently 

by presidential designation as the acting assistant secretary for 

labor management standards. 

As I alluded to earlier, Professor Breger was the chairman of 

ACUS from 1985 to 1991. For 2 years during that period, he served 

as an alternate delegate of the United States to the United Nations 

Human Rights Commission in Geneva. 

A prolific writer and editor, Professor Breger is vice president of 

the Jurispolicy Center, a Jewish conservative think-tank. Professor 

Breger obtained his undergraduate and master’s degrees from the 

University of Pennsylvania. He received his law degree magna cum 

laude from the University of Pennsylvania, where he was an editor 

of the law review and a member of the Order of the Coif. 

Our third witness is Professor Elizabeth Magill of the University 

of Virginia Law School, where she teaches, not surprisingly, 

courses on administrative law, as well as on food and drug law and 

constitutional structure. 

Upon obtaining her undergraduate degree from Yale College, 

Professor Magill served as a senior legislative assistant for North 

Dakota Senator Kent Conrad. Thereafter, she obtained a law degree from the University of Virginia School of Law. After graduating from law school, Professor Magill clerked for the Honorable 

J. Harvey Wilkinson of the Fourth Circuit Court of Appeals, and 

then for Justice Ruth Bader Ginsburg. Like her fellow panelists, 

Professor Magill has also published extensively. 

Our final witness is Professor Cary Coglianese. As I noted in my 

opening remarks, Professor Coglianese was the moderator of the 

Subcommittee’s symposium on e-rulemaking, which was held in 

this very room last December. 

Welcome back. 

Professor Coglianese is the Edward B. Shils professor of law and 

professor of political science at the University of Pennsylvania Law 

School. Prior to joining the University of Pennsylvania, Professor 

Coglianese spent 12 years on the faculty of the John F. Kennedy 

School of Government at Harvard. While there, he served as the 

faculty chair in the school’s Regulatory Policy Program and director 

of its Politics Research Group. 


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Professor Coglianese received his undergraduate degree from Albertson College. He then went on to the University of Michigan, 

where he received his law degree and master’s degree in public policy, as well as a doctorate in political science. 

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 record, you may not want to limit your comments to 5 minutes. We will have time for questions, and you can certainly volunteer things during the Q&A. I don’t think we are going to have a 

great deal of competition from other Members of the Committee 

here. 

You do have a lighting system in front of you. After 4 minutes, 

it turns from green to yellow. It is my habit to tap just with a pencil or something to draw your attention to the fact that we are getting to that point. It is not a big deal today, given the fact that we 

are not overwhelmed with folks that want to ask questions. 

After you have presented your remarks, we will go in order, if 

others arrive, of arrival, to ask questions. Pursuant to the direction 

of the Chairman of the Judiciary Committee, I ask the witnesses 

to please stand and raise your right hand to take the oath. 

[Witnesses sworn.] 

The record should reflect that the witnesses all answered in the 

affirmative. 

You may be seated. 

Professor West, would you please proceed with your testimony? 

TESTIMONY OF PROFESSOR WILLIAM WEST, THE BUSH 

SCHOOL OF GOVERNMENT AND PUBLIC SERVICE, TEXAS 

A&M UNIVERSITY, COLLEGE STATION, TX 

Mr. WEST. I am Bill West from The Bush School of Government 

and Public Service at Texas A&M University. Thank you for inviting me to testify in commemoration of the 60th anniversary of the 

APA. 

My testimony today will focus primarily on parts of a recent exploratory study of how agencies develop proposed rules. The study 

was conducted by a team of seven Bush School students that I supervised and that was supported by the Congressional Research 

Service. Curtis Copeland and Mort Rosenberg of CRS provided invaluable support and guidance for the project. 

I might also note that Caitlyn Miller, who is the student leader 

of the project, is here today. 

Mr. CANNON. Could I interrupt and ask who Ms. Miller is? Could 

we have her raise her hand? 

Welcome. Nice to have you here today. 

Pardon me for the interruption. 

Mr. WEST. That is fine. 

The 60th anniversary of the APA is a good occasion to consider 

its effects and its limitations. An especially important, if neglected 

topic, is that part of the rulemaking process that takes place before 

the APA’s requirements come to bear. Notice and comment is intended to ensure that rulemaking is transparent and accessible to 

all relevant stakeholders. Yet although these procedures are unVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 00344 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230

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doubtedly salutary, it is also true that they come to bear at a relatively late stage in the decision-making process. 

The part of the rulemaking process that precedes the publication 

of notice frequently lasts for several years and almost always results in a specific and thoroughly justified policy proposal. It is 

where the most critical decisions often occur. If public notice and 

comment is intended to promote inclusive and transparent participation in decision-making therefore, how inclusive and transparent 

is participation in proposal development? 

As a starting point, one thing that our study finds is that prenotice participation is common and that it takes place through a 

variety of mechanisms. Although participants vary a great deal 

from one agency to the next, and indeed from one rule to the next, 

they can include representatives of industry and other affected interests, public interest groups and other agencies. OMB and other 

entities within the executive office of the president are also sometimes involved. 

Unlike notice and comment under the APA, however, participation in the development of proposed rules usually does not occur by 

general invitation. Rather, it is informal and occurs at the specific 

invitation of the agency or at the initiative of the participant. The 

primary exception to this is when agencies solicit comments from 

all interested parties through an advance notice of proposed rulemaking. Although agencies’ use of advanced notice varies, it is 

never routine or even frequent. It is probably employed significantly less than 5 percent of the time across the Federal bureaucracy. 

Participation during the pre-notice phase of rulemaking thus is 

not subject to the same institutional guarantees of inclusiveness 

that the APA provides during the comment phase. Whether this is 

a problem, much less a problem that Congress should address, suggests a number of more specific questions. 

For example, how effective are agencies in gathering input from 

all relevant stakeholders during proposal development? If they are 

not effective, do the APA’s notice and comment requirement serve 

as a check on earlier imbalances in participation? Would the benefits of institutional reforms that might increase inclusiveness in 

proposal development outweigh their costs in terms of administrative efficiency? 

Our examination of pre-notice rulemaking also addresses the 

question of transparency. Although the APA is silent on the subject, there has been an expectation since the 1970’s that agencies 

base their rules on a record. Although they generally docket communications outside the executive branch that occur after the publication of notice, however, there is wide variation across agencies 

in pre-notice docketing practices. Some indicate that they record all 

communications with non-executive actors throughout this phase. 

Others indicate that they do not require any pre-notice docketing. 

In between these two extremes there is variation in the types of 

communications placed on the public record and in the stage of the 

proposal development process at which docketing begins. As with 

inclusiveness, the policy issues surrounding transparency are complex. 


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1 James Blumstein, ‘‘Presidential Administration and Administrative Law: Regulatory Review 

by the Executive Office of the President: An Overview and Policy Analysis of Current Issues,’’ Duke Law Journal 51 (2001). 

If on-the-record communications promote openness in decisionmaking, for example, they may also impede the collection of needed 

information. As in the legislative process, moreover, on-the-record 

communications may be inimical to the bargaining and compromise 

required for the accommodation of affected interests. 

Some officials we interviewed for our study also indicated that 

off-the-record communications with other agencies and OMB were 

important for coordination among administrative programs. Indeed, 

any effort by Congress to require docketing within the executive 

branch would necessarily have to consider the court’s sympathy for 

a unified executive in recent decades. 

I should hasten to emphasize that our study was designed to 

identify key issues, rather than to resolve them. In these and many 

other respects, gaining a better understanding of the administrative process is an essential foundation for sound institutional policy. 

Again, I am grateful for the opportunity that you and CRS have 

given to us to explore one broad dimension of rulemaking, and I applaud other recent initiatives to shed more light on topics such as 

e-rulemaking and the role of advisory committees in administrative 

decision-making. 

As an extension of these last observations, let me close by stressing the need to devote more resources to policy and legal analysis 

in the administrative process. For years, the Administrative Conference of the United States produced objective studies by first-rate 

scholars that were of considerable practical, as well as academic 

value. 

I am happy that ACUS has been reauthorized, and I would like 

to join those who have argued that it should be re-funded as well. 

This would produce substantial benefit for relatively little cost. 

Thank you. 

[The prepared statement of Mr. West follows:]

PREPARED STATEMENT OF PROFESSOR WILLIAM WEST

I am Bill West from the Bush School of Government and Public Service at Texas 

A&M University. Thank you for inviting me to testify in commemoration of the 60th 

anniversary of the Administrative Procedure Act. I am honored to be here. 

My testimony today will focus primarily on the results of a recent study of how 

agencies develop proposed rules. The study was conducted by a team of seven Bush 

School students that I supervised and that was supported by the Congressional Research Service. Curtis Copeland and Mort Rosenberg of CRS provided invaluable 

support and guidance for the project. I am also grateful to Daniel Mulhollan, Angela 

Evans, and Kent Ronhovde for their initiatives in establishing a relationship between CRS and the Bush School. Our study of rulemaking is one of several worthwhile projects that CRS has sponsored at the Bush School and other schools of public affairs. 

The Administrative Procedure Act is a venerable statute that has served the nation well. As many have remarked, however, American administrative law was a 

comparatively new field at the time the APA was enacted and the so-called bureaucratic state was still in its relative infancy. New procedural constraints on agency 

discretion have been added as the bureaucracy has grown and as new issues of legitimacy and accountability have arisen. Mechanisms for direct oversight of administrative policy making have been added as well. The most important development in 

this latter regard has been the institutionalization of regulatory review in the Executive Office of the President that has occurred over the past three decades.1 The 


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2William F. West, ‘‘Formal Procedures, Informal Processes, Accountability, and Responsiveness in Bureaucratic Policy Making,’’ Public Administration Review 64: 66–80 (February 2004). 3 Ibid. Also see Steven J. Balla, ‘‘Administrative Procedures and Political Control of the Bureaucracy,’’ American Political Science Review 92: 663–673 (1998). Marissa Martino Golden, ‘‘In- terest Groups in the Rulemaking Process: Who Participates? Who Gets Heard?’’ Journal of Public Administration Research and Theory 8: 245–70 (1998). Cornelius M. Kerwin, Rulemaking: 

How Government Agencies Write Law and Make Policy, 2d. ed. (Washington, D.C.: Congressional 

Quarterly Press, 2003). Susan Webb Yackee, ‘‘Sweet-Talking the Fourth Branch: Assessing the 

Influence of Interest Group Comments on Federal Agency Rulemaking,’’ Journal of Public Administration Research and Theory 26: 103–24 (2006). 4West, supra note 1. These observations were also confirmed in some of the interviews conducted for the study described in this testimony. 

various controls that shape the administrative process have been added largely in 

a piecemeal fashion and perhaps without sufficient consideration of how they all fit 

together. 

In any case, the 60th anniversary of the APA is an appropriate occasion to consider its effects and its possible limitations. With regard to rulemaking, one might 

examine the effects of public comment on agency decisions or the impact of judicial 

review (or the threat thereof) as the meaning of the ‘‘arbitrary-or-capricious’’ standard has evolved. Or one might examine the relationship between the APA’s objectives, on the one hand, and centralized executive oversight of rulemaking on the 

other. Scholars have, in fact, given a good deal of attention to these and other important topics relating to formal, institutional constraints on agencies’ exercise of 

legislative discretion. 

At the same time, scholars have practically ignored the informal processes that 

precede the APA’s notice-and-comment requirements and most other controls on 

rulemaking. This, despite the fact that the most important policy decisions in rulemaking are arguably made as proposals are being developed. I have noted elsewhere 

that the notices of proposed rulemaking that appear in the Federal Register are 

usually very specific. Further, they often take years to develop and reflect a substantial investment of agency resources. Important proposals are sometimes accompanied by book-length documents that lay out their legal and empirical premises. 

Suffice to say that agency officials usually feel that they are on firm ground before 

they invite public comment, and that the most critical issues in terms of defining 

problems and eliminating alternative solutions to those problems have at least tentatively been resolved.2

This is not to deny the importance of notice and comment. Several recent studies 

have found that agencies do sometimes alter proposed rules in ways that are consistent with the comments they receive.3 As a matter of perspective, however, it is 

difficult for agencies to change proposed rules in fundamental ways. An obvious disincentive is sunk organizational costs. Intertwined with this is the fact that the demands of due process may compel agencies to invite additional comments in response to substantial changes, thus lengthening an already protracted process.4 An irony of rulemaking procedures is that the effort to ensure the viability of public 

comment by requiring agencies to base their decisions on a record (as the courts 

have generally done since the 1970s and has Congress has done in some enabling 

legislation) creates an incentive for agencies to develop proposals that will not need 

to be changed. 

With these observations as a point of departure, the project that we conducted for 

CRS examines how agencies develop proposed rules. It relies primarily on agency 

documents, on an electronic questionnaire sent to agency staff involved in the development of a large sample of individual rules, and on telephone interviews with highlevel agency careerists with extensive experience in the rulemaking process. As an 

exploratory study, it addressed three general sets of issues as a way of identifying 

questions for further research: how are rulemaking initiatives placed on agencies’ agendas: how is the rulemaking process managed within and across agencies; and 

what is the character of outside participation in the development of proposed rules. 

The last of these questions may be especially relevant to the Congress as it considers possible amendments to the APA. 

The goals of the APA offer a frame of reference for evaluating participation in proposal development. The Act sought to provide some uniformity across agencies (at 

least regulatory agencies) as they carried out their quasi-judicial and quasi-legislative responsibilities. By the same token, it sought to ensure a degree of due process 

that was appropriate for each of these functions. In the case of rulemaking, the ‘‘informal’’ or ‘‘notice-and-comment’’ procedures set forth in section 553 were designed 

to promote a certain level of rationality as well as transparency and inclusiveness 

in administrative policy making. The requirements that agencies publish a notice 


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5The Administrative Procedure Act: A Legislative History (Washington, D.C.: U.S. Government 

Printing Office, 1946) Senate Doc. 248, 79th Cong., 2d. Sess. 6 Colin S. Diver, ‘‘Policymaking Paradigms in Administrative Law,’’ Harvard Law Review 95: 

393–434 (1981). 7 Richard B. Stewart, ‘‘The Reformation of American Administrative Law,’’ Harvard Law Review 88: 1667–1814 (1975). 

in the Federal Register and solicit comments from any and all interested parties 

were designed to promote these latter, democratic values.5

As many have noted, developments in administrative law over the past three-anda-half decades have been intended to reinforce these goals. The most important has 

been the requirement that agencies based their rules primarily on a record. This 

has resulted in part from provisions in some enabling statutes that supersede the 

APA and in part from judicial (re)interpretation of the APA’s ‘‘arbitrary or capri- cious’’ standard of review. Although the courts have backed off from the precedents 

of the 1970s in some respects, the ‘‘hard-look’’ doctrine of review is hardly dead— especially if one compares current practices with those that existed during the first 

two-and-a-half decades after the APA’s passage. Whether instituted by Congress or 

the courts, the extension of more rigorous due process to rulemaking has been motivated in part by the desire to ensure that bureaucracy consider all legitimate comments in arriving at policy decisions.6 This goal became popular as the result of the 

allegation that agencies were ‘‘captured’’ by special interests.7

If many of the most important decisions are made before notice appears in the 

Federal Register, however, what of the participation that occurs as agencies are developing proposals? How inclusive and transparent is that process? As with most of 

the other issues we examined in our study, there are no simple answers here. This 

is largely because agency practices are so diverse with regard to most of the key 

dimensions of proposal development. Although we had hoped that the data from our 

electronic survey would allow us to make systematic comparisons of such variation 

across agencies and policy areas, a low response rate prevented this. Still, our interviews and survey data allow for some important observations that suggest further 

study and that may ultimately be relevant for institutional reform. Indeed, the observation that such variation exists may be significant in and of itself given the relative standardization of practices within the comment phase of rulemaking. 

One thing that we found is that outside participation in proposal development is 

common. Although it does not always occur, it does occur frequently. Not surprisingly, in fact, a number of the officials we interviewed noted that gathering information from people outside of the agency was frequently indispensable to intelligent 

decision making. Although participants vary a great deal from agency to agency and 

from one rule to the next, they can include representatives of industry and other 

affected interests, public interest groups, and other agencies. The latter might become involved in order to resolve jurisdictional issues or coordinate across programs 

or to represent the interests of their constituents. 

OMB’s Office of Information and Regulatory Affairs can also be an important participant in proposal development. Although its level of involvement varies a good 

deal from one agency to the next, some officials characterized OIRA as the ‘‘800- pound gorilla.’’ Its informal role in policy formulation is undergirded by the formal 

powers it enjoys at a later stage to return for reconsideration proposed rules that 

are not properly justified or that are inconsistent with the president’s agenda. In 

contrast, there was a near consensus among those we interviewed that, although 

specific statutory requirements were a very important source of rulemaking initiatives in some agencies, the extent and impact of congressional involvement in the 

development of proposed rules tended to be quite limited. 

Beyond the observation that it occurs and that it can involve various actors, we 

found that the character of participation varies considerably. The timing of input 

is one important dimension of variation. Some officials indicated that their agencies 

communicate with extra-governmental actors throughout proposal development 

while others indicated that their policy is to terminate communications at an intermediate stage of the process. Among the latter, the most common termination point 

is after the agency has collected general views about the nature of the problem 

being addressed and possible solutions to that problem and before it begins to articulate and support a specific policy proposal. The mechanisms of participation also 

vary a great deal. They range from informal conversations at trade conferences or 

over the telephone to e-mails and letters to hearings to advisory committees, among 

various other possibilities. Some agencies even use focus groups on occasion. 

A generalization that one can offer about participation in proposal development, 

however, is that—unlike notice-and-comment under the APA—it does not usually 

occur by general invitation. Rather, it occurs either at the specific invitation of the 


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agency or at the initiative of the participant. The primary exception to this generalization is when agencies solicit comment from all interested parties through an advanced notice of proposed rulemaking. Yet although the use of ANPRMs varies from 

one agency to the next, they are never used on a routine or even a frequent basis. 

Although we did not gather precise data, it appears as if they are employed significantly less than five percent of the time across all rulemaking. 

Our interviewees offered several explanations for their reluctance to use advance 

notices more often. One was that ANPRMs were an additional source of delay in 

a process that was already slowed by numerous procedural hurdles. This disincentive was sometimes reinforced by pressures from Congress and elsewhere to issue 

rules in a timely fashion. Another explanation was that advanced notices did not 

produce any useful information beyond what the agency could obtain by contacting 

stakeholders individually. Not surprisingly, virtually all of the officials we interviewed indicated that they made assiduous efforts to gather all relevant perspectives, and many expressed confidence that they usually knew who were affected by 

their rules. In addition, several officials noted that, because it did not occur in response to a specific proposal, comment pursuant to advance notices was too 

unfocused to be of much value. Two of the senior people we interviewed noted that 

their agencies’ use of ANPRMs had declined in recent years as the result of these 

factors. 

In brief, then, although critical policy decisions are at least tentatively made during proposal development, participation during that phase of rulemaking is not subject to the same institutional guarantees of inclusiveness that the APA provides during the comment phase of rulemaking. Whether or not this is a problem, much less 

a problem that Congress should seek to address is a complex issue that involves a 

variety of considerations. One obvious question is whether agencies are effective in 

gathering input from all relevant stakeholders during proposal development (or 

whether participation and influence tends to be confined to the ‘‘usual suspects’’). 

To the extent participation during proposal development is not inclusive, another 

important set of questions have to do with whether the APA’s notice and comment 

requirements redress participatory imbalances during proposal development. Are 

agencies willing to make substantial changes in proposed rules? Given the resources 

required for effective comment, moreover, the formal opportunity to offer feedback 

on proposed rules may have little practical effect in enfranchising those who have 

not had access to agency decision makers during proposal development. Finally, 

even if Congress could promote inclusiveness through institutional constraints on 

proposal development, the potential benefits of such a reform must also be weighed 

against its costs in terms of administrative efficiency and effectiveness. The officials 

we interviewed were unanimous in their opinion that requiring advanced notices for 

all or certain classes of rulemaking would impose undue delay on decision making. 

Our study also addressed the related issue of transparency in proposal development. Again, although the APA is silent on the subject, there has been an expectation since the 1970s that agencies base their rules on a record. Given this, almost 

all of the officials we interviewed indicated that they made available to the public 

all communications with actors outside of the Executive Branch (including legislators and legislative staff) that occurred after a notice appeared in the Federal Register. In contrast, there was wide variation in pre-notice docketing practices. A highlevel official in the general counsel’s office of one department indicated that his 

agency’s policy was that practically all communications with non-executive actors 

must be recorded. In contrast, another official indicated that his agency did not feel 

a need to docket any pre-notice communications. In between these two extremes, 

some interviewees said that their agencies did not docket early communications designed to collect general information about problems but became more conscious of 

the need to docket communications at the later stages of proposal development. Others indicated that they tended only to docket communications that were material 

to their proposed rules. 

Such wide variation in docketing practices may be attributable in part to the current ambiguity of judicial precedent in this area over the past thirty years. It is also 

undoubtedly attributable to agency culture and tradition, as well to the preferences 

key officials. One senior careerist with a good deal of influence over administrative 

procedures within his department indicated that he favored strict docketing requirements on policy as opposed to legal grounds. Given that most pre-notice participation occurred at the specific invitation of agency officials, he felt that recording such 

communications was desirable as a way of avoiding perceptions of bias in the process. As with inclusiveness, the prescriptive issues surrounding transparency are complex and invite further research. If off-the-record communications obviously detract 

from the openness (and thus perhaps the legitimacy) of proposal development, they 


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8 Elena Kagan, ‘‘Presidential Administration,’’ Harvard Law Review 114 (2001). 9For a recent discussion see William F. West, ‘‘The Institutionalization of Regulatory Review: 

Organizational Stability and Responsive Competence at OIRA,’’ Presidential Studies Quarterly

35 (March 2005). 

may also be desirable in terms of administrative efficiency and effectiveness. Although the officials we interviewed were not as consistent in their opposition to 

docketing requirements as they were to advanced notices, a number of them indicated that ex parte conversations facilitated the kind of information gathering required for rulemaking. As in the legislative process, moreover, on-the-record communications may be inimical to the bargaining and compromise required for the accommodation of competing interests. Although agency officials involved in rulemaking 

typically describe it as a ‘‘technical’’ process of ascertaining legislative intent and 

making sound factual determinations, there is little doubt that it is also frequently 

a political process that requires ‘‘partisan mutual adjustment’’ among competing interests. (It usually requires only a little prodding in interviews to bring this out.) 

Some officials also indicated that off-the-record communications with other agencies and OMB were important for coordination and management among administrative programs. Indeed, any effort by Congress to require the docketing of communications within the Executive Branch would necessarily have to consider the legal 

implications of such a policy. This observation is underscored by the Supreme 

Court’s sympathy in recent decades for a ‘‘unified executive’’ as a means of 

rationalizing policy implementation across the federal bureaucracy.8 Yet while managerial prerogatives within the executive are certainly an important consideration, 

it is also true that other agencies, OMB, and the White House sometimes act as conduits for private interests in their efforts to influence rulemaking. This is well-documented in the case of OIRA, for example.9 To some extent, therefore, docketing requirements for non-governmental actors but not for members of the Executive 

Branch might have the potential to produce a misleading appearance of transparency. All of this is to say that the development of proposed rules deserves much more 

attention than it has received. It is the proverbial black box; the part of the iceberg 

that lies under the water. Again, our study was an exploratory effort designed to 

identify some the key parameters of variation in the process and to identify important questions rather than to answer them. That was true of our consideration of 

agenda setting and the management of proposal development as well. 

In the case of agenda setting, for example, we found that whereas some agencies’ rulemaking consisted primarily or exclusively of discretionary initiatives that derived from various sources (agency staff research, feedback from enforcement officials, suggestions from affected groups, etc.) other agencies’ agendas were dominated 

by non-discretionary (legislatively required) rules. Still other agencies combined the 

two in various proportions. A systematic, cross-agency study of where ideas for rules 

come from and of why some ideas become rules and others do not can add a good 

deal to our understanding of how government works. An examination of agenda setting might also have prescriptive value. In the case of one agency, for example, although non-discretionary rules comprised a minority of its total workload, the fact 

that they took precedence nonetheless made it difficult to plan and execute a coherent agenda for all rulemaking. The official with whom we spoke felt that more effective communication with Congress could help alleviate this problem. 

The management of proposal development is also a fertile area for further investigation. For example, we found that some agencies have highly detailed, formalized 

procedures whereas others have no written policies to guide the process. The degree 

to which key decisions in the formulation of proposed rules is centralized at the departmental level also varies a good deal. To observe that such variation exists naturally suggests the questions of why it exists and what difference it makes in terms 

of agency performance. 

There are many other important dimensions of proposal development that have 

received little if any attention. For example, what are the forms and roles of advisory committees and to what extent do these bodies provide effective representation 

for stakeholders? Another important set of questions concerns whether and how 

rulemaking is coordinated across agencies. The list could go on. 

This is not to say that studying proposal development is easy. Evaluative and prescriptive analysis is complicated at the conceptual level by the fact that we expect 

different qualities in the rulemaking process. Given its legislative nature, we naturally want it to reflect the democratic values of openness and balanced responsiveness. Given its administrative nature, we also want it to be carried out in as timely 

and efficient a manner as possible. A third criterion, which might labeled ‘‘substantive rationality,’’ is the expectation that rulemaking decisions be objective and 


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based on rigorous empirical evidence. All of these criteria are legitimate bases for 

assessing proposal development (and rulemaking more generally). As might be evident from the preceding discussion, however, they all potentially conflict with one 

another in critical ways. 

Data collection presents another, more practical challenge to the study of proposal 

development. Because of its extreme diversity, studies that focus on one or a few 

cases are of limited value in developing generalizations. Conversely, gathering process-related data for a large sample of rules can be a daunting task. As we found, 

for example, efforts to accomplish this goal through surveys of agency personnel face 

several obstacles, not the least of which is the inherent reluctance of bureaucracy 

to share information. Indeed, two agencies ordered their staff not to comply with 

our survey despite (or perhaps because of) a cover letter indicating that it was being 

conducted under the auspices of CRS and the Judiciary Committee. Even the senior 

officials we interviewed, all of whom were extremely helpful, were sometimes unable 

to share internal documents describing the rulemaking process. 

Still, the research needs to be done. Gaining a better understanding of the administrative process is an essential foundation for sound institutional policy. Again, I 

am grateful for the opportunity that you and CRS have given us to explore one 

broad dimension of rulemaking and I also applaud other recent initiatives to shed 

more light on topics such as e-rulemaking and the use of advisory committees. 

As an editorial observation, let me close by stressing the need to devote more resources to policy and legal analysis in these and other areas of the administrative 

process. For years, the Administrative Conference of the United States produced 

studies by first-rate scholars that were of considerable practical as well as academic 

value. Because it was clearly non-partisan and free of organizational ties that might 

otherwise bias its analysis, ACUS enjoyed the kind of access to agencies that is necessary for studying many of the most important issues in the administrative process. I am happy that ACUS has been re-authorized, and I would like to join the 

more distinguished individuals who have argued that it should be funded as well. 

This would produce substantial benefit for relatively little cost. 

Thank you.

Mr. CANNON. Thank you. We will use that last statement when 

it comes to get it re-funded. 

Professor Breger, you are recognized for 5 minutes. 

TESTIMONY OF PROFESSOR MARSHALL BREGER, THE CATHOLIC UNIVERSITY OF AMERICA-COLUMBUS SCHOOL OF LAW, 

WASHINGTON, DC 

Mr. BREGER. Thank you. My name is Marshall Breger. I teach 

at the Columbus School of Law at The Catholic University of America. I am pleased to join you today in this discussion of the future 

of the Administrative Procedure Act. 

If I may just follow along with Congressman Watt’s comments, 

the Administrative Procedure Act may be 60, but I think like many 

baby-boomers, it is not ready for retirement, rather for reviving, retuning, and hopefully a new lease on life. 

Having said that, the APA has served us well for the last 60 

years, but we have to remember we are today in a different time 

and a different place. In 1946, over 90 percent, and I could get you 

the exact numbers, but over 90 percent of the activities of administrative agencies were adjudications. Now, it has flipped. It is mostly rulemaking. 

In 1946, we came out of the New Deal with great enthusiasm, 

belief in the power of the regulatory process to address political, 

economic, and social problems. Today, we are more realistic, if not 

more skeptical. Indeed, we have a kind of default position for market solutions and the regulatory process has to prove itself in every 

instance. But being skeptical about regulation does not mean that 

you should be uninterested in the regulatory process. In fact, it 

means you need to think more hardly, more seriously, and have 


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more empirical research about regulation, what works, what 

doesn’t work, and what works better. So I am very pleased that 

this Committee is beginning to address that issue. 

I am going to speak about a number of issues in rulemaking, 

which I believe is the gravamen of this hearing, that I think are 

important to consider in thinking about revisions of the APA. First, 

informal rulemaking. You know that the notice and comment rulemaking process has been called by Kenneth Davis the greatest invention of Government in the 20th century. No doubt, it swept the 

board and changed the nature of the administrative process. 

However, we have seen in the last 60 years growing accretion of 

requirements for what is supposed to be informal, from the judiciary, growing accretions of requirements from Congress in mandates, and from the White House OIRA process, making informal 

more formal. 

We have had the growth of non-statutory informal rulemaking 

techniques, interim rulemaking, direct final rulemaking, advance 

notice of proposed rulemaking. And we have had the increasing 

tendency for agencies to bypass the ‘‘informal’’notice-and-comment 

process using interpretive rules and other forms of guidance to 

avoid what they call the ‘‘ossification’’ of the rulemaking process. 

Now, we certainly don’t want ossification. What we have to think 

of now, is the time to begin to institutionalize and codify some of 

these non-statutory techniques and to consider how to pattern interpretive and guidance documents to make sure that they provide 

the proper transparency and public participation that the Administrative Procedure Act stands for. 

Secondly, we have seen and we will see a growth in cooperative 

regulation, EPA, OSHA, VPP program, EPA Brownfields program, 

where there is an individuated interaction between the regulated 

entity and the regulator. It is trying to find flexible individual solutions. This is good. This is terrific, but it leaves us a challenge. 

How to have flexibility and at the same time neutrality, fairness 

and the rule of law? The rulemaking process has to think about 

that. 

Similarly, we have to think about public-private partnerships. 

We have had and we will have an increased growth in public-private partnerships, Government-sponsored enterprises, Government 

corporations, contracting out of what we generally think of as public functions, charter schools, private prisons. Does administrative 

law end when we start to move out of the traditional or classic public bureaucracy? That is a challenge for administrative law and for 

the APA. 

Judicial review. When the APA was passed, it instituted the notion of substantial evidence on the record as a criteria for judicial 

review. Justice Frankfurter said, Congress has set a mood for the 

judges to follow in reviewing administrative agency actions. Sixty 

years is a great deal of judicial experience. It may be appropriate 

for Congress to revisit that mood and recalibrate its notions of the 

proper relationship between judicial review of the courts and the 

agencies. 

And similarly, the whole problem of deference to agency interpretations of statutes and regulations, the Chevron case, and now the 


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Mead and cases following, call out for some guidance from Congress on what the proper canons of construction should be. 

Finally, I think we need to be looking at State and local innovations. There is a tendency when the APA was passed, to Federal 

administrative law. That is what we study. That is what we focus 

on. There has been a really cauldron of creativity in the States, 

California, Arizona, Florida to name a few. We need studies to look 

at what they have been doing and to see how they are relevant to 

the Federal administrative process. 

Now, to complete this agenda, what we need is an institution like 

the Administrative Conference to undertake the kinds of studies 

that marry not just academic expertise, but practical experience. 

That was a peculiar genius of the conference. 

So I applaud this Committee for reauthorizing the conference, 

and I hope that it will be appropriated in this year and future 

years to continue this work and begin to solve these problems. 

I thank the Committee, and I would be happy to answer any 

questions. 

[The prepared statement of Mr. Breger follows:]


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PREPARED STATEMENT OF MARSHALL J. BREGER


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Mr. CANNON. Thank you, Professor. 

I couldn’t help thinking while you were speaking that between 

the Ranking Member and me, we at least, maybe more than average between us, spent more than half of the life of APA as lawyers. 

That is a startling concept when you think about the evolution, especially recent evolution. In your litany of these issues, I was getting more and more nervous. How do we deal with this? 

The answer, of course, is ACUS. We need to reauthorize it. We 

need to fund it. We need to get people who are smart together because even with all the scope of this Committee and its resources, 

we can’t deal with the problems that are transforming before us as 

quickly as the litany that you presented. So thank you for that. We 

will have some questions. 

Professor Magill, you are recognized for 5 minutes. 

TESTIMONY OF PROFESSOR M. ELIZABETH MAGILL, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, CHARLOTTESVILLE, VA 

Ms. MAGILL. Thank you, Mr. Chairman. My name is Elizabeth 

Magill. I am a law professor at the University of Virginia. I teach 

and write in the fields of administrative law and constitutional law. 

I am so pleased to be asked to testify before the Subcommittee 

because, like a lot in the administrative law community, we have 

all admired the work of the Subcommittee, the leadership in seeking the reauthorization of ACUS and its passage in 2004. 

We have admired the efforts of the Subcommittee with the assistance of CRS’s American Law Division to start to identify a research agenda to address important questions of administrative 

process and funding projects like Professor West’s and the project 

Professor Freeman testified about last fall and the fall of 2004. We 

are so excited about what is happening, and it is such a pleasure 

as a result of that to be asked to testify. 

This hearing recalls the adoption of the APA and asks the question, where do we go from here? I am going to do my best in the 

last minute of my remarks to answer that question, but I have to 

say at the outset that I don’t know exactly where we go from here 

because in my opinion we don’t fully comprehend where we are 

right now. 

That is, despite the scope and the significance of the administrative state, there is not enough, as all the witnesses to date have 

said, and I bet the subsequent witness will say and this Subcommittee knows so well, there is not enough systematic and careful work that asks about the way the administrative state works, 

actually what it does, and whether it does it well. 

Nor is there enough systematic work about the various mechanisms we have and rely on to curb the exercise of agency discretion, congressional oversight, executive oversight, judicial review. 

There are lots of examples that highlight the lack of empirically 

grounded research and writing on the administrative state. 

One of my favorites that I uncovered is that there is an often repeated statistic, repeated many times, that 90 percent of agency action is informal, that is it falls below the APA requirements. It is 

not formal enough to invoke the APA requirements. I traced the origin of the statistic and the author of the statistic said, this is a 

guess. So I think the first step to studying the course for the future 


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is the investment of resources in careful study of the most pressing 

issues that arise across a range of agencies. 

And if I might add a little bit to the pitch for why ACUS, it is 

wonderful that it is here, why it needs to be appropriated, I think 

administrative process is a little different than a lot of other questions we might want to address. And that is because administrative 

agencies do a wide variety of things in a wide variety of ways. So 

there is an enormous complexity. 

At the same time, I think most people who study them think 

there are enough similar tasks that they do, for instance, relying 

on science to make decisions, a similarity in their processes, that 

you can generalize across agencies. But that is a pretty tough task 

to produce useful answers to questions that both take account of 

the complexity that is across the administrative state, but also try 

to find generalizable lessons. 

So I think that is an added sort of argument for why we need 

funding of a think tank like ACUS. 

I think I was asked to testify because for the past several years 

I have been trying to find out exactly where we are now, which is 

what I said was I think the first step to figuring out where we go 

in the future. With a colleague at the University of Michigan, Steve 

Croley, we have been working together to try to provide a comprehensive empirical picture of Federal agency decision-making. 

Our data, our project will present pretty detailed data on the frequency and type of decisions that Federal agencies make, both 

across agencies and across time. Our goal is to explain with attention to the legal parameters of agency decision-making tools, as indepth a data as is available on the frequency, including the changing frequency over time, of agency reliance on these tools. By 

‘‘these tools,’’ I mean rulemaking, adjudication, litigation on behalf 

of agencies, and guidance. 

Our data is presented in the aggregate, how many rules do we 

have across the Federal Government and how that has changed 

over time, if it has changed over time, and it is also agency by 

agency. So our project is, as I have described, quite descriptive, but 

we also try to address various questions that are raised by the descriptive patterns we uncovered. 

We undertook this project because as students of the administrative state and teachers of administrative law, we were incredibly 

frustrated by the lack of comprehensive information about what 

agencies do, and whether it has changed over time, and if so, how. 

So our primary goal has been to supply what we think is missing, 

some certain basic comprehensive facts about agency behavior. 

We have relied on a lot of sources in the work we have been 

doing. In identifying the sources, we I think have had an ACUSlike attitude, which is our preference was for data collected across 

a large number of agencies, collected by neutral entities at regular 

intervals. So we wanted to avoid collecting data agency by agency 

because that risks inconsistency in the way a single entity characterizes what it does. 

Our sources are largely Government sources. They are OPM, the 

GAO, the Regulatory Information Service Center, OIRA at OMB, 

the GSA, the Executive Office of U.S. Attorneys, and the Administrative Office of the Courts. So the work of the project really has 


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been collecting and presenting in meaningful and useful form data 

that is already out there. 

We are still very much in the process of writing and analyzing 

what we found. In January of 2006, we presented some preliminary 

findings, and let me give you a flavor of them. The core of the work 

is a chapter devoted to each of the major policymaking tools available to agencies, as I said, rulemaking, adjudication, Government 

litigation, and guidance. I will talk about rulemaking, adjudication 

and Government litigation very quickly, because I have 50 seconds 

left. 

So knowing how many rules are promulgated each year is actually a pretty complicated enterprise. A rule is a legal term of art. 

There are different definitions of rules, and even within definitions, 

there are different types of rules. There are two sources that provide pretty good aggregate data and those are the ones we rely on. 

Agencies together issue over about 4,000 final rules per year, an 

amount that reflects a gradual decline from the early 1980’s when 

they issued over 6,000 rules a year, and 66 percent of all final rules 

come from agencies whose heads report to cabinet secretaries, and 

10 percent come from the independent agencies. That is a decline 

from about 20 percent 2 decades ago, and the last 25 percent come 

from agencies like EPA that don’t report to cabinet secretaries, but 

to the president. 

Not all rules, though, have substantive effect. Some are ministerial. There are somewhere between, 1,000 and 1,200 rules each 

year that had a substantive effect. Among the substantive rules, 

about 500 to 700 are far-reaching enough that they trigger White 

House review. That number was closer to 500 in the 1990’s and it 

is now, since 2000, closer to 700 each year. Of those 500 to 700, 

45 to 75, depending on the year, are huge rules, for lack of a better 

term. They have an estimated annual impact on the economy of 

more than $100 million. 

I am going to skip to Government litigation because I think what 

we see there is——

Mr. CANNON. Ms. Magill, from my perspective, I am quite interested and you don’t need to worry about the time. 

Ms. MAGILL. Okay. All right. Sorry. These are red stop signs. 

Let me talk a moment, half of a minute, about adjudication. 

Tracking adjudication, as many people at this table know, in the 

Federal Government is actually quite difficult. There are two different kinds of adjudicators, there are actually more than that, but 

administrative law judges, obviously, and what have been denominated presiding officers. 

They are not administrative law judges, but they preside over 

evidentiary hearings. There is no current Government-wide collection of data on the number of adjudications performed each year. 

The vast majority of administrative law judges in the Federal Government adjudicate cases in the Social Security Administration. 

The Social Security Administration ALJs have since 1991 always 

constituted more than 72 percent of all Federal ALJs. After the Social Security Administration, the next highest employers of ALJs 

are Labor, the NLRB, and the Energy Department. 

In the aggregate from 1991 to 2004, the number of ALJs in the 

Federal Government increased by 13 percent, and that increase, of 


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course, occurred during a period when total Government employment declined by about 15 percent. But the 13 percent increase 

was not consistent across agencies. 

Basically, Social Security Administration ALJs increased, while 

other ALJs decreased. So Social Security ALJs increased 31 percent, while non-Social Security Administration ALJs declined 37 

percent. Roughly speaking, you could say that the number of adjudicators in the Federal Government who are implementing regulatory programs, say, at the NLRB or in the Energy Department, 

declined, while the number of adjudicators adjudicating benefits in 

the Social Security Administration increased. 

There are many adjudicators in the Federal Government, however, who are not ALJs. We know this from two surveys, the first 

one conducted under the auspices of ACUS, and the first one was 

in 1989. It showed that there were several thousand presiding officers in 1989. The author found 2,600 presiding officers. That number increased to 3,300 in a follow-up survey in 2002. 

The largest users of presiding officers were in the Justice Department’s Executive Office for Immigration Review, the Veterans Administration and the IRS. That was from 2002. 

Last, Government litigation. I think it is less written about, although there are actually quite great data sources that tell you 

what is happening with Government litigation. That is one window 

onto the administrative state, observe the litigation that is brought 

on behalf of agencies, and also the defense of litigation when the 

United States defends an agency from a suit brought against it. Affirmative litigation is called U.S. plaintiff litigation in the reports, 

and U.S. defendant litigation is the defense of litigation. 

A look at these data are actually revealing on a lot of different 

fronts. The most dramatic descriptive trend, my coauthor and I 

found, was a quite significant decline in U.S. plaintiff litigation 

starting from 1990 to the present. The Administrative Office of the 

U.S. Courts reports that U.S. plaintiff litigation declined by twothirds in a 14-year period between 1990 and 2004, going from 

30,000 U.S. plaintiff cases to 10,000 in 2004. 

Another source we used was from the Justice Department which 

tracks the cases brought by United States Attorneys in U.S. Attorneys’ offices throughout the country, which is the lion’s share of 

litigation handled by the Justice Department. From 1991 to 2003, 

overall civil cases handled by the U.S. Attorneys declined by 11 

percent, but the U.S. plaintiff cases declined by 60 percent, while 

U.S. defendant cases increased 11 percent. Affirmative litigation on 

behalf of every agency that the Justice Department represents declined, except for the Interior Department. 

Kind of a whirlwind tour of statistics that we are going to 

present with more detail in our book. The goal, as I said, is to provide an accurate and systematic picture of the activities of the administrative state. Like the other witnesses, I hope this sort of 

grounded work will be a basis for moving forward, identifying the 

right questions to ask and potentially identifying solutions. 

The data obviously raise a lot of different questions. Why in the 

last 5 years are there more significant rules being forwarded to the 

White House’s OIRA for review? What accounts for the rise in presiding officers? Why is the number of regulatory ALJs declining? 


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1 A revised version of this statement is published in the Appendix of this hearing. 

And what is happening to the work that they did? Why has U.S. 

plaintiff litigation declined so dramatically? 

So I think the real question that this Subcommittee is interested 

in is where do we go from here. My plea is we don’t quite know 

where we are, and we need to invest more resources in figuring out 

where we are and identifying the important questions, and answering them in a systematic way, not by anecdote, not by haphazardly 

gathered data, but by very careful collection of information that establishes the facts on the ground and allows us to move forward. 

Thank you very much. 

[The prepared statement of Ms. Magill follows:]

PREPARED STATEMENT OF ELIZABETH MAGILL 1

My name is Elizabeth Magill and I am a law professor at the University of Virginia School of Law. Thank you for asking me here today. 

My teaching and research are in the fields of constitutional law and administrative law. I have taught administrative law and related courses—food and drug law, 

advanced administrative law—since 1998. My academic writing in administrative 

law is about judicial review of administrative action and about the varied procedural 

choices agencies make when they implement their statutory mandates—whether, for 

instance, they adopt a legislative rule or adjudicate a case or bring an enforcement 

action in the courts. I have served as a reporter for the APA Restatement Project 

of the Administrative Law and Regulatory Practice Section of the American Bar Association. 

I am especially pleased to be asked to testify before this Subcommittee. Like many 

administrative law professors, I have admired this Subcommittee’s work on administrative process. The academics I know all cheered this Subcommittee’s leadership 

in seeking the reauthorization of the Administrative Conference of the United 

States and we hailed its passage in 2004. We have also admired the efforts of this 

Subcommittee to, with the assistance of the Congressional Research Service’s American Law Division, identify a research agenda to address important questions of administrative process and to fund several research projects. 

I. WHERE DO WE GO FROM HERE?

This hearing, which recalls the adoption of the Administrative Procedure Act sixty 

years ago, has been convened to ask what the future holds. I will do my best to answer that question in a moment, but I must note at the outset that it is not exactly 

clear where we go from here. That is because we do not fully comprehend where 

we are this moment. Despite the scope and significance of the administrative state, 

there is not enough systematic work that identifies what agencies are doing and 

asks whether they are doing it well; nor is there enough systematic work that asks 

about the effects of the mechanisms used to curb agency discretion—Congressional 

oversight, Executive and judicial review. There are many examples that highlight 

this lack of empirically-grounded research and writing on the administrative state. 

As Professor Jody Freeman pointed out in her testimony before this Subcommittee 

in 2005, an often-repeated statistic was that 80% of EPA rules were challenged in 

court; the only problem was that this had no basis in fact as one study demonstrated. Another often repeated statistic is that 90% of agency action is ‘‘informal’’—that is, it does not follow procedures specified in the APA—but, after tracing 

the origin of this statistic, I found that the author of the statistic represented it as 

a ‘‘guess.’’

In my view, the first most important step to setting a course for the future is the 

investment of resources in careful study of the most pressing issues that arise 

across a range of agencies. This Subcommittee’s leadership has started us down that 

road, and I will speak in a moment about work that advances that objective. But 

I do not have any doubt that more remains to be done. 

Careful and systematic study is not an easy task and that is one reason why there 

is not enough of it. The administrative state is incredibly complex. Agencies have 

distinctive statutory mandates—some distribute benefits, some regulate the market, 

some protect the nation. They also follow different processes and have distinctive 

designs—Commission, Administrator, Cabinet level or not Cabinet level. They adVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 00371 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230

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dress a dizzying variety of tasks in varied ways. That complexity makes systematic 

and generalizable research very difficult to conduct. 

At the same time, it is clear that administrative agencies are not so distinctive 

that one cannot generalize about their behavior and draw conclusions about what 

may trouble us about the soundness or wisdom of their activities. Of course, most 

agencies are subject the basic template provided for in the Administrative Procedure 

Act. More than that, though, many agencies share similar substantive tasks—they 

must rely on scientific judgments to do their business or they manage large benefit 

programs or they are in the business of licensing firms before they enter the market. 

Looking across agencies to determine and assess how they perform these tasks is 

obviously a worthwhile endeavor. Agencies are also subject to similar controls. They 

are the object of close oversight by Congress, the Executive, and/or the federal 

courts. Thus, despite the enormous complexity of the administrative state, there are 

common issues and problems that affect a large set of agencies such that cross-agency study will repay enormous dividends and will guide administrative reforms. 

To figure out where we go from here, then, we must invest the resources to study 

the general issues that affect a substantial number of agencies and, if warranted, 

identify problems and formulate solutions. I would emphasize that those resources 

must be put in the hands of people who will approach their study in a systematic 

way. In my view, such studies must rely on the time-tested methods of social scientific inquiry, rather than the haphazard gathering of data or, worse, anecdote. It 

is only careful study that can establish the facts of the matter and thus provide a 

sound basis for identifying problems that need to be rectified. 

There are several promising signs that such study is starting to occur. In part, 

these developments are due to the efforts and vision of the Members and staff of 

this Subcommittee and the CRS. Re-authorization of ACUS has generated enormous 

enthusiasm in the administrative law community. The studies that this Subcommittee’s efforts have spawned—Professor West’s work on public participation in rulemaking that we are hearing about today and Professor Freeman’s study of judicial 

review of administrative action—are important efforts that will advance our understanding and clarify what, if anything, is needed in the way of law reform. More 

than that, in my corner of the world, an increasing number of my peers are convinced of the need for empirical study of the administrative state and an increasing 

number of people in law teaching have the necessary training to engage in rigorous 

empirical work. 

II. ESTABLISHING AN ACCURATE PICTURE OF THE ADMINISTRATIVE STATE’S ACTIVITY

For the past several years, I have been working with a colleague to complete what 

I just testified was the most important step to take before we could identify what 

comes next—that is, we have been working on a project to find out exactly where 

we are now. My colleague is Professor Steven Croley at the University of Michigan 

Law School and we have been working together to provide a comprehensive empirical picture of federal agency decision-making. We have received several grants to 

support our work, including from the Milton and Miriam Handler Foundation and 

the Olin Foundation. Our goal, in the most general terms, is to describe what agencies do and how that has changed over time. 

Our project will present detailed data on the frequency and type of decisions that 

federal agencies make, both across agencies and across time. Our book explains the 

legal parameters of agencies’ primary decision making tools—including legislative 

rulemaking, adjudication, litigation, and agency guidance—and provides as in depth 

data as is available about the frequency, including change in frequency over time, 

of agency reliance on those tools. Our data is presented in the aggregate (how many 

rules across the federal government and how has that changed over time) as well 

as agency by agency. We also identify patterns in that data. Our project is heavily 

descriptive, but we also provide narrative explanation of why, when, and how federal agencies make decisions, and we address various normative questions implicated by our empirical findings as well. 

Professor Croley and I undertook this project because, as students of the administrative state, we were frustrated by the lack of comprehensive information about 

agency decision-making. Most administrative law scholarship focuses primarily on 

judicial review of agency decision making. While obviously important, judicial reaction to agency work product is only one window onto the activities of the administrative state. Meanwhile, political scientists and economists who write about agency 

behavior are not generally attentive to the legal differences among the agencies’ policymaking tools. As teachers of administrative law, we found no work that examined 

empirically the range and frequency of procedures agencies employ. More than that, 

no work provides a ready general source of data about the form and frequency of 


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administrative agencies’ legal work-product. Our motivation for undertaking this 

project has been primarily to supply what is missing—certain basic, comprehensive 

facts—about agency behavior and agency decision-making. 

Our effort has several goals. Most basically, we aim to shed descriptive light on 

fundamental but understudied questions about federal agency decision-making. For 

example: Exactly how often do agencies engage in rulemaking and adjudication 

processes under APA? Which agencies do so the most, and which the least? Have 

agencies engaged in more or less rulemaking, and adjudication, over time (and adjusting for variables like population, GNP, and legislative activity)? In addition, how 

many of which different types of rules—‘‘regulatory rules,’’ ‘‘redistributive rules,’’ ‘‘governmental housekeeping rules,’’ etc.—have agencies issued over recent years? 

How many staff have agencies committed to the adjudication processes over time? 

How many times do agencies sue to enforce their statutory mandates and how, if 

at all, has that changed over time? How often are agencies sued and required to 

defend their exercises of authority and how, and if so, has that changed over time? 

A related goal of our project is to provide others with an empirical base from 

which others can draw their own conclusions about administrative government. We 

hope to inspire others to enlist the data we supply to advance their own research 

on agency behavior. Abstract discussions of administrative government should be 

grounded as much as possible in concrete facts about what agencies really do, and 

the facts we present will inform others’ work. 

Last but not least, we engage in analyses ourselves, practicing what we preach. 

That is, in addition to presenting the facts about the type and volume of agency activities, we consider how those facts might connect to perennial normative debates 

about, for example, executive versus legislative control of agencies, agency accountability and independence, and the appropriate size and role of the federal government, among others. We also explore our descriptive findings by running several 

statistical tests to evaluate hypotheses related to normative discussions of agency 

activity. For example, we investigate whether certain agency decision-making procedures increase or decrease with Republican or Democratic administrations, or in 

times of divided or undivided government, among other things. 

We have collected data from a very wide variety of sources. In identifying sources, 

we had a strong preference for data collected across a large number of agencies, and 

collected by neutral entities at regular intervals. We wished to avoid collecting data 

agency by agency because of the risks of inconsistency this raises. Our sources are 

largely available from various government sources. The data come from, for example, Office of Personnel Management, GAO, the Regulatory Information Service Center, Office of Information and Regulatory Affairs at OMB, the General Services Administration, Executive Office of the United States Attorneys, and the Administrative Office of the U.S. Courts. Much of it is available in a raw form that must be 

analyzed and aggregated to be meaningful and appropriate for generalization. Most 

of the labor of our project consists of the legwork of finding, compiling, and aggregating data across many different sources, and then organizing and presenting that 

data in meaningful ways. 

We are still in the process of producing our book. But in January of 2006, at the 

annual meeting of the American Association of Law Schools, we presented some of 

our preliminary findings. I will recount for you some of what we reported there. 

The core of the book are chapters devoted to each of the major policy making tools 

available to agencies—rulemaking, adjudication, government litigation, and guidance. Let me provide a few highlights of our findings about rulemaking, adjudication, and government litigation: 

*Rules: Knowing how many rules are promulgated each year depends on the type 

of rule as well as the classification system of the entity that collects the information. 

‘‘Rule’’ is a legal term of art and there are different definitions of rule and different 

types of rules. But, two sources, RISC and GAO, provide the most useful aggregate 

data on the number of rules issued each year. Relying one these data sources, we 

have come to the following preliminary conclusions. 

First, agencies together issue just over 4,000 final rules per year, an amount reflecting a gradual decline since the early 1980s, when they issued just over 6,000 

rules a year. Second, about 66% of all final rules come from agencies whose heads 

report to cabinet secretaries, while only about 10% percent come from the independent agencies, down from about 20% percent two decades ago. The remaining 

25% come from executive-branch agencies, like the EPA, whose heads do not report 

to cabinet secretaries but to the President. 

Considering proposed rather than final rules, the same general pattern emerges. 

Agencies now publish about 2,700 proposed rules a year, down from over 3,500 in 

the early and mid-1980s. Here, however, independent agencies publish a bigger 

share, 15–20% of proposed rules, with non-cabinet executive agencies publishing 


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just barely more than that, and the remaining 60% then coming from cabinet agencies. 

Not all rules, however, have a substantive effect. Somewhere between 1,000 and 

1,200 rules issued each year have a substantive effect. Among substantive rules, between about 500 and 700 rules each year are far-reaching enough to trigger White 

House review. The number was closer to 500 in the late 1990s, and approximates 

700 each year since 2000. Of those, about 45 to 75 per year constitute huge rules 

with an estimated annual impact on the economy of more the $100 million. 

*Adjudication: Tracking adjudication in the federal government is difficult because there are different types of adjudicators—Administrative Law Judges (ALJs) 

and Presiding Officers (POs)—who preside over evidentiary hearings and there is 

no current governmentwide collection of data on the number of adjudications conducted each year. For one putting together an accurate empirical picture of administrative adjudication, the primary sources are OPM personnel data, two publications 

by the ACUS in the late 1970s, and two surveys of non-ALJ adjudications conducted 

in 1989 and 2002. 

The vast majority of ALJs in the federal government adjudicate cases in the Social Security Administration. SSA ALJs have, since 1991, always constituted more 

than 72% of the total ALJs in the federal government. After SSA, the next highest 

employers of ALJs are Labor, NLRB, and the Energy Department. 

In general, from 1991 through 2004, the total number of ALJs increased by 13%, 

from 1191 to 1341. This increase occurred during a period when total government 

employment declined by 15%. 

The 13% increase in the number of ALJs was not consistent across agencies. Social Security Administration ALJs increased by 31% while the number of non-SSA 

ALJs declined 37% between 1991 and 2004. In other words, the number of adjudicators who are implementing regulatory programs declined while those adjudicating 

benefits have increased. 

Many who adjudicate cases in the federal government are not ALJs. We know 

from two surveys that there are several thousand POs conducting evidentiary hearings. In a 1989 survey, the author found 2,692 POs and this number increased to 

3,370 according to a follow-up survey conducted in 2002. As of the 2002 survey, the 

largest number POs were in the Justice Department’s Executive Office for Immigration Review, the Veterans Administration, and the IRS and the largest number of 

cases decided by POs were in EOIR, the IRS, and the Appeals Council of the SSA. 

*Government Litigation: One window onto to the administrative state is to observe litigation on behalf of agencies in the courts. This includes affirmative litigation—called ‘‘US as plaintiff’’ litigation—brought by the federal government as litigation whether the government is defending against a challenge to its activities—

called ‘‘US as defendant.’’ The Administrative Office of the Courts and the Executive 

Office of U.S. Attorneys each track this litigation. 

A look at those data are revealing on a variety of fronts, but the most dramatic 

descriptive trend is the dramatic decline in ‘‘US as plaintiff’’ litigation. The Administrative Office of the Courts reports that US plaintiff litigation declined by two thirds 

in a 14 year period. In 1990, there were 30,000 US plaintiff cases and this declined 

to 10,000 in 2004. During the same period, US as defendant litigation increased dramatically, from just under 25,000 cases to nearly 40,000 cases. 

The Executive Office of the US Attorneys reports similar data, although their data 

track agency litigation more closely because US Attorneys represent client agencies 

throughout the government. From 1991 through 2003, overall civil cases handled by 

US Attorneys declined by 11%. But US plaintiff cases declined by 60% while US defendant cases increased by 11%. Affirmative litigation on behalf of every agency that 

DOJ represents declined, except the Interior Department. 

This whirlwind tour of statistics provides just a slice of the data we will present 

in our book. As you can see, our goal is to provide an accurate and systematic picture of the activities of the administrative state. It is our hope that this sort of 

grounding will be a basis for moving forward by identifying the right questions to 

ask. And the data raise many questions: Why, in the last five years, are there more 

‘‘significant’’ rules being forwarded to OIRA for review? What accounts for the rise 

in POs? Why is the number of regulatory ALJs declining? Why has US Plaintiff litigation declined so dramatically? 

III. WHERE DO WE GO FROM HERE?

So I return to the question I started with, namely, where do we go from here? 

As I said at the outset, I do not know where we go next because of the dearth of 


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sound and careful work about where we are now. I am absolutely confident that further study is necessary to identify problems and formulate solutions. And the reauthorized ACUS gives is a real opportunity to move forward. Once funding is secured, 

many will clamor to fund various research projects. They may disagree on the priority, but few will disagree about the central need for more and more rigorous work 

about what is occurring at agencies. And there are many worthy research projects. 

In the fall of 2005, you heard testimony from Professor Jeffrey Lubbers, Mr. Mort 

Rosenberg, and Professor Jody Freeman, all suggesting possible avenues for research of a reconstituted ACUS. I have read their testimony and believe they made 

extremely valuable suggestions. I will add a few of my own to the list. My suggestions are not detailed proposals for study, but what I view to be the most important 

general areas for research. 

External Agency controls: To my mind, a central question about agency activity 

is whether and how the various oversight mechanisms that are in place for agencies 

work. Agencies are subject to control and oversight by Congress, by the Executive, 

and they are subject to judicial review by courts. To my mind, asking about the 

function and efficacy of these control mechanisms is probably the most important 

question we can be asking. Thankfully, there is work that has been and is being 

done on these areas. Professor Croley has carefully studied the White House Review 

of agency rules and Professor Freeman is now engaged in her own comprehensive 

study of judicial review of agencies. These two studies are notable for their systematic—as opposed to ad hoc-approach and they have and will teach us a lot. But we 

need to do more because these external controls on agencies are so important and 

it is a complex enterprise to assess their efficacy. In my view, we are just at the 

beginning of building an accepted base of knowledge and moving toward conclusions 

about the wisdom and efficacy of these control mechanisms. 

Internal Agency Controls: Another promising area for research is to get inside the 

agency and study how agencies make their important decisions. My own research 

has made me very interested in why it is agencies choose to implement their mandates in such different ways, some relying heavily on adjudication, others relying 

heavily on rules. But there are many other questions, for instance: When and why 

do agencies adopt enforcement guidelines? How do they organize internal appeals 

from front-line decision makers? How do they set their regulatory priorities? These 

questions about the internal decision making process of agencies are central to understanding why they behave the way they do and, as a result, are worthy of sustained attention. 

Effectiveness of Rules. Many have noted that we have no way to determine the 

effectiveness of rules after they are in place. Among other things, we presently have 

no mechanism to determine whether the projections contained in the cost-benefit 

analysis when the rule is adopted turn out to be accurate in the long-run. Answering this question may not answer questions about the overall efficacy of regulations, 

but it would be a useful question to ask and, more importantly, it is just the sort 

of analytic task that a think tank arm of government could design and conduct. A 

research program aimed at identifying the promising ways to go about assessing the 

costs and benefits after implementation and comparing them to earlier projections 

would be a worthy enterprise. 

Thank you for inviting me here today. I am gratified by the interest this Subcommittee has shown in the efficacy and fairness of administrative process.

Mr. CANNON. Thank you. I look forward to your report. 

Professor Coglianese, you are recognized for 5 minutes or whatever time you would like to take. 

TESTIMONY OF PROFESSOR CARY COGLIANESE, UNIVERSITY 

OF PENNSYLVANIA LAW SCHOOL, PHILADELPHIA, PA 

Mr. COGLIANESE. Thank you very much. 

Chairman Cannon, and fellow Members of the Subcommittee, I 

appreciate the invitation to testify here today. I recently joined the 

University of Pennsylvania Law School faculty, after spending 12 

years at the John F. Kennedy School of Government, where I remain a senior research fellow and continue to do work on administrative law, with a particular emphasis on empirical inquiry of the 

regulatory process. 


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I would like to take my time today to talk about the role of information technology in the rulemaking process, and what kind of implications that has for thinking about the Administrative Procedure 

Act in the next 60 years. I would like to make three main points. 

First, information technology is here to stay. It is an important 

fixture in the administrative process. Second, empirical research on 

the effects of information technology is important for decision-makers to have available in deciding how to deploy information technology in a smart way. And third, information technology projects 

present key management challenges, some of which will demand 

congressional involvement in oversight. 

Let me take each of these in turn. First, information technology 

has become a major issue in how we think about the rulemaking 

process today, and it will only continue to be a major issue in the 

future. 

Now, that is, I think, something that is quite different than at 

least the first 50 years of the Administrative Procedure Act. During 

that time, information technology moved roughly from carbon copy 

to photocopy, but the way in which information was managed by 

regulatory agencies remained largely paper-based. People who 

wanted to find out about the rulemaking process had to come to 

Washington, physically enter a docket room to gather information. 

If they wanted to participate in the regulatory process, there might 

be an occasional public hearing held somewhere in the country that 

they might attend, but generally speaking they would participate 

by picking up the phone or, more commonly, sending in a letter. 

That has changed. It is now possible with information technology 

for people in Washington State, as well as Washington, D.C., to access information about any rule that Government agencies are developing. It is now possible for people all around the country to engage in an interactive iterative way with themselves or with Government officials over regulations, through the Internet. 

This is a process that has been encouraged, that is the process 

of employing information technology in the rulemaking process, encouraged by both the Clinton administration and the Bush administration. The Bush administration most recently has created an erulemaking initiative which has produced an online portal called 

Regulations.gov at which place any member of the public can go 

and find out about any proposed rule that is open for comment and 

comment on it. 

The e-rulemaking initiative is now also developing a Federal 

docket management system which will be a single location on the 

Internet where eventually a member of the public could go and find 

all the supporting documents for any rule across the Federal Government. These issues are, as I say, here to stay. 

The second point is that we need to understand what difference 

this information technology is actually making, what kind of effects 

it is having on the rulemaking process. Now, one of the predictions 

that is most widespread both among Government officials, as well 

as among academics, is that the Internet will create what some 

people have even called a revolution in public participation, allowing citizens to play a role in rulemaking that they have never been 

able to play before and involving them on a frequent basis in the 

regulatory process. 


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This actually is an issue that researchers have examined quite 

extensively already. A growing body of research is developing on 

these questions. What is most surprising, perhaps given these predictions, is that the available research is showing that public participation has not increased in almost all rules due to the advent 

of the Internet. 

I say that should be surprising given the predictions, but I think 

with hindsight it probably shouldn’t be too surprising. Rulemaking, 

whether it is e-rulemaking or not, is still a fairly technical, and if 

not even arcane, area of public policymaking. So we probably 

shouldn’t be surprised that many members of the public are not 

participating on a frequent basis. 

Indeed, just as the Internet has lowered the cost to participate 

in the rulemaking process, it has also lowered the cost for members 

of the public to chat online with their friends or follow sports results or celebrity gossip or do other things that they would probably much rather do with their time. 

Now, the fact that public participation has not expanded with the 

advent of e-mail and Regulations.gov does not mean that e-rulemaking shouldn’t be pursued. There are other important purposes 

for using information technology in the regulatory process, from 

transparency, from public expectations about access to Government, from enhanced oversight by the legislature or the executive 

branch, various administrative efficiencies, and I also think a great 

deal of benefit for academic researchers. 

But for all of those purposes, empirical research will be important to figure out which kind of technologies are actually serving 

those goals, how well are they serving those goals, and how can information technology be better deployed to serve those goals. 

My third and final point is that in any information technology 

project, technology is only half the battle. Organizational and institutional factors matter a lot for the success of any information 

technology project. When we had our symposium here in December 

of 2005, a number of people expressed concerns and complaints 

about the current Federal Docket Management System, its searching capability, and the kinds of information that it holds. 

Those are concerns that the people managing the project are 

aware of. But they might be among the first to acknowledge that 

the institutional structures right now for pursuing information 

technology projects relate to rulemaking, the FDMS project in particular, are really somewhat makeshift. It is the Environmental 

Protection Agency that is actually managing a Government-wide IT 

initiative related to rulemaking. 

However much you may admire the work that the folks at EPA 

are doing, it is not clear that an individual regulatory agency 

should have the authority to be managing this project. We might 

look in the future at the model of the Office of Federal Register or 

the National Archives and Records Administration as a possible institutional way of organizing information technology projects in the 

future. 

Of course, as with efforts for empirical research and other important efforts of Government, IT projects also need adequate funding 

vehicles as well. So there is a continued role for Congress in purVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 00377 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230

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suing and overseeing information technology projects as they related to rulemaking. 

I thank the Committee for the opportunity to talk with you about 

these issues and for your interest in these issues. 

[The prepared statement of Mr. Coglianese follows:]


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PREPARED STATEMENT OF CARY COGLIANESE


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Mr. CANNON. Thank you, Professor. 

I intend to do more than one round of questioning, if that is 

agreeable to Mr. Watt. So I am going to limit myself to 5 minutes, 

and we will go back and forth, if that is interesting to you. 

I was intrigued, Professor Coglianese, by your comments about 

empirical studies. Can I ask a couple of questions of you all, four 

or five? 

How many of you have been online to look at Wikipedia or any 

other wiki? Do any of you do that? It is a fascinating experience. 

How many of you have used Google as your search engine? Okay. 

How many of you have e-mailed, or how many of you have looked 

at gmail? Okay, you are obviously the guru here. 

Are any of you members of an online community? 

Let me tell you my experience. I don’t spend a lot of time on the 

Net because my time is jerked around. But yesterday, I am too fat 

and I want to lose weight, and to do that I decided to Google ‘‘calorie counter.’’

So I ended up with a whole bunch of choices, and I went to a 

site called ‘‘sparklepeople’’ or something like that. It looked like it 

had a calorie counter, so I went to the site and couldn’t find the 

counter without joining. And I thought, what the heck, I joined the 

community, so I signed up. 

They asked for my e-mail. I was reluctant to give my real e-mail, 

and so I decided to see what Gmail is like. I don’t mean to bore 

you here, but if you are talking about being empirical, you can’t do 

empirical analysis retrospectively. You have to look at the tools 

that are available, and that is where I am sort of headed here. So 

Gmail is not e-mail. 

Let me just say, you also look at Gmail. I am not recommending 

that because that would not be a congressional thing to do, but it 

was fascinating, and I decided to sign up for the Gmail account. 

And I used that as the e-mail address, and I hope I am protected 

because you use your cell phone number, by the way, when you do 

Gmail. It is not e-mail. It is a different thing and very interesting. 

And then I became part of the community. It turns out the calorie counter was more awkward to use there than otherwise, but 

I did flip through the site to see how it worked, and it is a real 

community about people trying to use weight. 

In that environment, in the environment we are in, which is an 

environment of dramatic change, just with the difference between 

e-mail, where you communicate back and forth, and Gmail, where 

I think what they say on the Web site is archive and don’t delete. 

So, for instance, I had a very interesting conversation on texting 

from my telephone to my son’s telephone in quite a poignant point 

of our lives, and what I have on my telephone is my statement in 

the outbox and his statement in the inbox, and you can’t put them 

together, at least not with the technology that I have. 

So I have saved that, because it is sort of interesting. In fact, it 

is very interesting. I think 10 years from now he is going to be fascinated when we go back over that conversation. You can’t do that 

given the technology that is the latest technology you can get that 

I have had, but you can do it with Gmail. 

And so, when you talk about people being engaged, I am sort of 

lecturing here, but the reason I am, I really appreciated the input. 


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This has been a remarkable hearing. When you look at the decisions we have to make, and you all are focused on those and dealing with those, it has got to be done in the context not of what Government is or what has been happening or what agencies have 

been doing or what agencies haven’t been doing, or what people are 

involved. 

Given the nature of the community, you are not going to get people, individuals normally involved with a system that has questions 

about what records are available, when you have Google that 

makes everything available. 

And so it seems to me part of what we need to do here is look 

at where we can go with people and their involvement. And you 

don’t expect a guy who is not a geophysicist to be commenting on 

a rule that relates to something technical like geophysics. But you 

can get him involved if you have a community and a discussion and 

a conclusion and a choice. 

And many times, we don’t vote on the rules. We do the things 

that make rational sense, but you can get feedback from people in 

the context of maybe we should think about this. If you have gone 

through and read and evaluated and considered the implications of 

what you are doing, how do you think Government ought to react? 

In that context, I think that we have to look back at our most 

famous and first democrat, Thomas Jefferson, who believed that 

that governs best which is closest to the people that are affected 

by it. How much Government are we going to be able to shift away 

from the Federal level and toward the local level? And by the way, 

you can multiply complexity because there are a lot more people at 

the local level than there are in Washington, D.C. 

So I am going to ask some questions in my next round. My time 

is almost up. I hope you will help as we go forward with this 

project, and you guys have been involved and we appreciate it. We 

absolutely need, the thing that has come through with great clarity 

is we need ACUS. 

ACUS is not what it was in the 1960’s. ACUS is the place where 

we can draw with resources everybody together and think about 

these issues. They are not Republican issues. They are not Democrat issues. They are issues of our time. They are issues that are 

largely created by technology and if we don’t answer them thoughtfully and with a thoughtful process, we are going to get the wrong 

kinds of answers. 

So with that, I will yield back and recognize the gentleman, the 

Ranking Member, for 5 minutes. 

Mr. WATT. Mr. Chairman, I am impressed. 

Mr. CANNON. That I didn’t ask a question? [Laughter.] 

Mr. WATT. No, with your knowledge of the technology. While you 

were exploring the technology, I was out running. [Laughter.] 

It will help you lose weight a lot faster. 

Mr. CANNON. He doesn’t need the calorie counter. I am almost 

ready to take that up. [Laughter.] 

Mr. WATT. Just a suggestion to you, in case you are looking for 

a suggestion about how to lose weight. Don’t count the calories, just 

burn them. [Laughter.] 

Anyway, having said that, Professor Breger, your last round of 

statements, or your last subject that you dealt with, was some of 


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the creativity at the State level. I was hurriedly trying to read 

through your testimony. You gave it a sentence or two in your oral 

statement and you gave it a sentence or two in your written statement, too. 

So can you tell us a little bit more about what some of the States 

are doing in terms of creativity that we ought to be at least thinking about? 

Mr. BREGER. Thank you, Congressman. 

Arizona has, institutionalized by the State legislature, a kind of 

State OIRA process, which has some innovative features for centralized review of rulemaking, including the centralized review also 

suggesting to the agencies when they should be re-looking at existing rules or not. 

Florida has its own State APA which has dealt with interpretive 

regulations in innovative ways, also problems of waiver of regulation by agencies. California’s Administrative Procedure Act has a 

different approach toward judicial review with different levels of 

deference. 

And of course, the model State Administrative Procedure Act, 

which is a kind of model for the States, has a number of different 

approaches and solutions from the APA that are worth considering, 

including interpretative regulations among others. Those are just a 

few of the kind of creative activity that is going on in the States. 

I would be happy to enlarge on that in written testimony. 

Mr. WATT. I think that would be helpful to us, lest we have to 

go and Google what the States are doing. While my Chairman will 

be capable of doing that, I assure you I will not. [Laughter.] 

I won’t either e-mail it or Gmail it. 

Let me try to tie together what Professor Magill and Professor 

Coglianese said. Is it possible that the decline in hearings and U.S. 

litigation may be being precipitated by those limited number of 

people who are engaging in e-technology? It seems to me that one 

possibility is that e-technology is certainly enabling people who are 

interested in an issue to be a lot more involved in discussing that 

issue quickly and interactively. 

It used to be that you could only comment through the written, 

paper, slow-mail process. You got no response to that until the rule 

was actually made. Is this notion that I have that this increased 

interactive capability may be helping to sort through some of the 

disagreements that are taking place or were taking place that were 

not resolved, and maybe leading to a reduction in administrative 

procedures and/or litigation? 

Ms. MAGILL. Sure. It is an interesting idea. I guess the theory 

would be that increased participation and potential collaboration 

resolves conflicts, and therefore agencies have less need to bring 

enforcement actions or pursue violators of rules or statutory violations. That is an interesting idea. 

It is not something we had yet thought of, but we haven’t yet zeroed in on this descriptive finding. At the moment, we are very bigpicture, what has happened with rulemaking, what has happened 

with adjudication, what has happened with litigation. This descriptive trend surprised us. We presented it in January of 2006. There 

were several people from the Justice Department who were also 

surprised. 


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So we don’t know the answer, and the best I can say is I think 

there are lots of possibilities. This is one possibility we can think 

about. We are some months away from thinking about it in a sort 

of rigorous way. What could possibly explain the reductions, and 

then try to test whether those factors do show up as causally related to the reduction, or at least correlated with the reduction. 

So it is an interesting idea, and I am sad to say I can’t yet tell 

you with confidence whether I think the data supports it. 

Mr. COGLIANESE. We don’t have any definitive research on that 

specific question, but it is highly plausible. In fact, one would expect that if members of the public can access Government information about rulemaking more easily, then their comments should be 

better informed and more helpful to the agency, right, which 

should enable the agency to make a better rule. 

And if it is easier for interested members of the public, as you 

say, those who have a connection with the rule and an understanding of the general area, if it is easier for them to participate, 

then Government may hear more from them. And that may enable 

them to anticipate problems, anticipate conflicts, and create a better rule. 

Right now, we don’t have any research that examines the extent 

to which information technology creates better rules, but we would 

hope it does. And we would hope that with increased investments 

and innovation in information technology, we could come up with 

tools that would make rules even better; that would not only avoid 

litigation, but deliver more benefits to society. 

Mr. WATT. Mr. Chairman, I know I am over my time, but since 

I am on a roll and I haven’t gotten Professor West yet, can I ask 

one more question? Well, actually one more question after that, too, 

but it is not as important. 

Mr. CANNON. Would the gentleman mind? I would like to follow 

up on the last question. Are you going to change the subject? 

Mr. WATT. No. I think I am going to extend it to the pre-comment period with Mr. West. That is what he devoted most of his 

time talking about, and his student may want to join in the conversation with us. 

I was just fascinated by how you can do this pre-comment period, 

get more interactive, especially through technology you could do it. 

But I don’t know how you would do it without having a bunch of 

Government officials just sitting there e-mailing back and forth in 

every agency. 

How would you structure this increased pre-comment notion that 

you think is desirable, that it seemed to me that you all thought 

it might be desirable, and maybe actually helpful in maybe decreasing even more the litigation, if you could get more people talking earlier in the process. But how do you structure something like 

that without just being so burdensome that it just takes up so 

much time that you can’t manage it? 

Mr. WEST. That is a great question. I don’t have a ready answer 

for it. 

You know, we wanted to see how much communication there was 

in the pre-notice phase of rulemaking, and with whom it took place 

and raise some issues. Should the pre-notice process be structured? 

That begs a number of other questions. In part, it depends on how 


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effective the comment phase of rulemaking is in redressing imbalances that occur during it. 

Mr. WATT. It has to be structured to some extent, don’t you 

think, because otherwise you don’t know who to communicate with. 

Maybe that is a good dissertation undertaking for your student. 

She is smiling, hey, maybe I can structure something pre-comment 

period. 

Mr. WEST. Well, that is a great question. 

An obvious alternative would be to require agencies to use advance notices for all rules or for certain kinds of rules, maybe rules 

that reach a certain threshold of significance. Actually, our study 

was based in large part on interviews with seasoned public servants, many of whom had been working in the area of rulemaking 

for decades. They were uniformly against that, a requirement for 

advance notice is across the board. They thought that that would 

just impede efficiency too much. 

Mr. WATT. And be burdensome. 

Mr. WEST. It would be burdensome. It would delay the process. 

Mr. WATT. It would take a lot of time. 

Mr. WEST. Sure it would, yes. It is already a protracted process 

and they felt that it would lengthen rulemaking by years, in some 

cases. 

Mr. WATT. I didn’t change the subject, I don’t think. 

Mr. BREGER. Mr. Chairman, if I can just add, when I was Solicitor of Labor, when we did Advance Notices of Proposed Rulemaking, these were for major rules. We thought through in advance questions to ask with great particularity to see what the different interest groups in the regulated community thought about 

going in different directions. We found that was very helpful. 

We also developed some roundtables trying to bring together different interest groups. I won’t call them focus groups. 

Mr. WATT. That is the same thing as a chat room? 

Mr. BREGER. But in person. That was pre-high-tech. Again, that 

was very useful in bringing to our attention problems in our thinking and therefore make the rule better. 

And finally, and of course with Professor Coglianese here, I have 

to mention negotiated rulemaking, which is another mechanism, 

where he is an expert, but another mechanism which we used at 

the Labor Department to bring out in kind of less than formal ways 

problems with a proposed rule to try to refine it and improve it in 

the rule development process. 

Thank you. 

Mr. CANNON. Neg reg, of course, was one of the great successes 

of ACUS. 

Mr. BREGER. Yes. 

Mr. CANNON. May I ask, how many students do we have who are 

associated with your project here? Do you want to raise your hand, 

those who are associated with Dr. West’s project? 

Mr. WEST. Just one. 

Mr. CANNON. One. Do you have any other students associated 

with Dr. Magill’s project? 

Okay, we are not going to put anybody on the spot here. Thanks. 


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Let me follow up on this line of reasoning, whether we call it a 

chat room or in-person kind of thing. Let me give you another experience that I had, also related to my weight. 

I have decided, since this discussion, I am going to find a keyboard that has more resistance so I am using more calories when 

I do that, but I noticed my weight was different in Utah than in 

Washington. I had the same brand of scale. I got it from Costco. 

It was very consistently different. 

So I Googled the difference in altitude and weight. I got a very 

simple answer, but that was as part of a discussion board, and 

somebody responded to that simple answer with a more complex 

answer, and then somebody who had a Ph.D in something came on 

and said no and then gave a very big answer, a very complicated 

answer. The net effect is I think it is just a consistent difference 

in my scales. 

But the reason I tell that story is because if you look at the world 

like having to do a pre-rulemaking and a notice of rulemaking or 

a negotiated rulemaking, you are dealing with what a few people 

in an agency are seeing, as opposed to what the world is seeing. 

And so maybe if you have a context for discussions, this rule is not 

working because I have a farm in Minnesota and it is a different 

situation from the people that you have regulated in other parts of 

the country. 

If you have that kind of an environment, all of a sudden you get 

the right kind of input from the right kind of people, and then 

maybe some agronomist somewhere can point out, you think your 

farm is different, but in these regards it is the same. And the guy 

says, oh, yes, you are right. And so you have compliance by a guy 

who might otherwise not comply on the low end, and therefore less 

litigation, but on the other end you have people, associations of 

people that then focus on their interest and their differences and 

the way they communicate. 

So if you look at the Internet as a way to do what we used to 

do better, it is not the same thing as saying, what do we have, 

what tools do we have available that allows us to do better what 

we ought to be doing, rather than what we have done. And so, let 

me just hope that that will ferment in your perfervid imaginations. 

Ms. Magill, may I ask you a question? You said that the 90 percent agency actions informal statistic, when did he come up with 

that guess? Do you know? 

Ms. MAGILL. It was a speech given in the middle of the 1970’s, 

published in the Administrative Law Journal. 

Mr. CANNON. We have been using that figure, that guess, for 30 

years. 

Ms. MAGILL. Professor Freeman had an example in the fall of 

2005 in her testimony that I think people relied upon. This was the 

80 percent figure, 80 percent of EPA rules are challenged in court. 

A study demonstrated that that was not true. I am not sure my 

90 percent figure has been the basis for policymaking, but it is repeated a lot. 

Mr. CANNON. It is repeated a lot, yes. 

Ms. MAGILL. It is repeated a lot. It is a difficult enterprise to 

carefully answer the question, how much agency action is informal, 

even in one agency. So maybe a guess is the best we can do. I don’t 


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think so. But to answer that question definitely would be hard, but 

again, we can do better than a guess, I think. 

Mr. CANNON. And probably the difference is going to be relevant 

and significant as we go forward. 

Ms. MAGILL. Yes. 

Mr. CANNON. Dr. West, in your prepared statement, you said two 

agencies ordered their staff not to comply with your survey, despite 

a cover letter indicating that it was being conducted under the auspices of CRS and the Judiciary Committee. 

What were the two agencies that refused to cooperate with you? 

Mr. WEST. Caitlyn, correct me if I am wrong, but I think it was 

the Internal Revenue Service and the Department of Transportation. 

Mr. CANNON. Ms. Miller, would you like to join us at the table? 

We won’t even put you under oath. We would love to have you 

here. 

Do either of you have a guess as to why those two agencies were 

uncooperative? 

This goes on your resume. You have yet to testify. You have to 

say something at some point. [Laughter.] 

Mr. WEST. The person from the IRS told us that. We assured everyone that the survey would be confidential and that it would not 

even identify specific regulations, but they were nonetheless afraid 

that that would establish a precedent that would lead to lawsuits 

or other efforts to open up, to get access to communications that 

occurred during the pre-notice phase of rulemaking. That was my 

recollection for IRS. 

I can’t remember the rationale that was given to us by the Department of Transportation. 

Ms. MILLER. We did do the survey electronically, and we got 

some e-mails. We sent out the cover letter to all of our respondents, 

and then we sent out a preliminary e-mail with the link to the survey. We got some responses back that there were policies from the 

counsel’s office in the departments that they were not to participate 

in any academic surveys. Their impression was that they were too 

busy. 

Mr. CANNON. I suspect that means we have to haul them in here 

before this Committee, right? 

Mr. WEST. I will add, though, that especially with the Department of Transportation, the other part of our study consisted of 

interviews with experienced Government officials, people from general counsel’s offices and so forth. There were several people from 

Transportation that were extremely helpful in that part of the 

project. 

Mr. CANNON. You know, there is an interesting overlay between 

what Congress can do and what our staff can do, and what an academic institution can do. I suspect that ACUS sort of helps bridge 

that gap by working together with staff. 

Do you think, Professor West, that if ACUS had been involved 

that that would have affected these agencies’ reaction? 

Mr. WEST. Well, it might have, and this is something that Curtis 

Copeland and I discussed. ACUS is obviously a nonpartisan agency 

without any apparent institutional bias. So people in the agencies 

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in research occurring under the auspices of, say, a congressional 

Committee. 

Mr. CANNON. But would you indulge me for one more question? 

Dr. Breger, you headed ACUS for a period of time. In your experience, did ACUS ever work with Committee staff to get information 

that was otherwise difficult to get? 

Mr. BREGER. We worked with Committee staff in the sense that 

Committee staff often suggested projects to us. We generally had 

a good working relationship with the agencies. The reason is that 

every agency by statute was a member of ACUS. Usually, their 

chief legal officer, or their general counsel, was the member or the 

deputy general counsel in charge of regulations. So they, in a 

sense, bought into the process. 

As a result, we had a much easier time. I won’t say ‘‘easy.’’ We 

had a relatively easy time in gaining their cooperation, certainly on 

the front end of the study. One of my jobs after the plenary assembly approved a recommendation was to knock on everyone’s door 

and say, why don’t you accept it? That was not always so easy. 

Mr. CANNON. You know, you gave a litany of the problems we 

have. Everybody has suggested that there is a vast amount that we 

don’t know that is knowable, and ACUS can help us know that on 

the one hand. On the other hand, we have great opportunities to 

transform what we do, and having agencies buy in through ACUS 

makes the case very, very strongly, I think, for ACUS. 

I yield back. Do you have more questions, Mel? 

Mr. WATT. I just wanted to follow up with Professor Coglianese. 

Can you provide a little information about how EPA got to managing e-rulemaking, the whole process? And would ACUS be an alternative to that? Or what would be the logical alternatives to one 

particular agency taking the lead on something like that? 

Mr. COGLIANESE. Certainly. The president established an e-Government agenda which had 24 different projects. E-rulemaking was 

one of those projects. For each project, the Administration designated a lead agency to administer these initiatives. 

My understanding is that OMB hired a consulting firm to examine the hardware that was used by agencies that had online docket 

systems in place already, and that the consultant report identified 

the EPA as having the best hardware, which was not surprising 

since EPA was one of the most recent agencies, at that time, to 

adopt such a system. So it had the latest technology. 

EPA has since worked with a great deal of cooperation by all the 

other agencies, 100 agencies or so, that are connected in this erulemaking initiative. Many of the agencies that issue a lot of rules 

are more active in working collaboratively with EPA, but the 

project is administered by EPA. That has led to some challenges 

when it comes to funding. 

Initially, OMB was channeling funds on a pro-rata basis according to how many rules an agency issues, all coming from different 

agencies to fund this initiative. The congressional Appropriations 

Committee didn’t quite agree with that as an approach to funding 

e-Government efforts and has since called into question that practice, and now it is much more difficult to fund this project adequately because of this makeshift institutional structure. 


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The other thing that has happened is that EPA really has no 

final say, in a sense, because it is not administering a statutory 

mandate that has vested management authority in it. So an alternative model for undertaking an e-rulemaking project like this that 

covers the entire Federal Government would probably not be 

ACUS, but something like the Office of Federal Register, which 

similarly is charged with an information management function that 

cuts across the entire Federal Government. There are standards for 

what goes into the Federal Register, what format it is in, and the 

like, and those standards apply to all agencies. 

So something like that might be the more appropriate model to 

look at creating an institution that could manage information technology projects that cut across the Government, and hopefully extend indefinitely into the future and allow for innovation as technology improves over time. 

Can I add one other comment, by the way, to your earlier point 

about chat rooms and involving the public in notice-and-comment 

rulemaking? 

Mr. WATT. I have actually never been in a chat room. 

Mr. COGLIANESE. I just wanted to note, it wasn’t in my testimony, but it is in a forthcoming article I have written that will appear in the Duke Law Journal. There have been several agencies 

that have tried chat-room, online discussions, interactive forums, 

as ways of generating information. 

There was one study by Woody Stanley, a DOT employee, where 

he looked at a project that the Federal Motor Carriers Administration had undertaken. He went to the Web site, and you could either 

join the chat room or you could file a comment. 

Interestingly enough, the people who filed the comments and 

chose that avenue tended to be the usual suspects. But people who 

entered the chat room and discussed issues tended to be truck drivers who wouldn’t ordinarily have filed comments. And through that 

interactive dialogue, Stanley reports, there were different kinds of 

issues that were presented to the agency than emerged in the comments. 

The comments focused on a lot of technical issues, costs and the 

like. The truck drivers were raising issues of practicality, of safety 

and the like, that were not emphasized as much through the formal comments. So there is some work being done by agencies to explore these interactive opportunities, and some research being done 

on what it all means. 

Mr. WATT. Your second dissertation is on structuring this e-rulemaking technology. We are giving her a lot of information today. 

Thank you, sir. I appreciate it. I yield back. 

Mr. CANNON. I have one very quick question, and then a couple 

of things for the record. 

Professor Coglianese, have you worked at all with the IEEE to 

help develop standards in this regard? They are a massive resource, and you ought to connect with them. 

In fact, let me suggest a name, Lee Hollaar, L-E-E, last name HO-L-L-A-A-R, has worked on the Hill on the Senate side. He has 

a degree in computer science and also law, and he works closely 

with the IEEE. He is on several of their Committees, and we can 

get you his phone number. He would be a great guy to talk to 


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about this because he is smart and he has the background and he 

can connect with the folks who ought to be doing this at IEEE, and 

they ought to be part of our overall project. 

And just for the record, it is Ms. Miller, right? And what is your 

first name? 

Ms. MILLER. Caitlyn. 

Mr. CANNON. C-A-I-T-L-I-N? 

Ms. MILLER. Y-N. 

Mr. CANNON. Y-N. Okay. Great. M-I-L-L-E-R. 

Ms. MILLER. Correct. 

Mr. CANNON. Just so you know, this is the permanent record forever, and you are here with us. We thank you for being here. 

I ask unanimous consent that we keep the record open for 10 

business days, working days, for follow-up written questions. Without objection, so ordered. 

Let me just thank you all. We appreciate your expertise. It is a 

very difficult issue which is timely and very important, and we appreciate your involvement here today, but also in the broader 

project. We look forward to seeing you again soon. 

Thank you. 

We are adjourned. 

[Whereupon, at 12:59 p.m., the Subcommittee was adjourned.] 


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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

REVISED PREPARED STATEMENT OF PROFESSOR M. ELIZABETH MAGILL, UNIVERSITY

OF VIRGINIA SCHOOL OF LAW, CHARLOTTESVILLE, VA 

My name is Elizabeth Magill and I am a law professor at the University of Virginia School of Law. Thank you for asking me here today. 

My teaching and research are in the fields of constitutional law and administrative law. I have taught administrative law and related courses—food and drug law, 

advanced administrative law—since 1998. My academic writing in administrative 

law is about judicial review of administrative action and about the varied procedural 

choices agencies make when they implement their statutory mandates—whether, for 

instance, they adopt a legislative rule or adjudicate a case or bring an enforcement 

action in the courts. I have served as a reporter for the APA Restatement Project 

of the Administrative Law and Regulatory Practice Section of the American Bar Association. 

I am especially pleased to be asked to testify before this Subcommittee. Like many 

administrative law professors, I have admired this Subcommittee’s work on administrative process. The academics I know all cheered this Subcommittee’s leadership 

in seeking the reauthorization of the Administrative Conference of the United 

States and we hailed its passage in 2004. We have also admired the efforts of this 

Subcommittee to, with the assistance of the Congressional Research Service’s American Law Division, identify a research agenda to address important questions of administrative process and to fund several research projects. 

I. WHERE DO WE GO FROM HERE?

This hearing, which recalls the adoption of the Administrative Procedure Act sixty 

years ago, has been convened to ask what the future holds. I will do my best to answer that question in a moment, but I must note at the outset that it is not exactly 

clear where we go from here. That is because we do not fully comprehend where 

we are this moment. Despite the scope and significance of the administrative state, 

there is not enough systematic work that identifies what agencies are doing and 

asks whether they are doing it well; nor is there enough systematic work that asks 

about the effects of the mechanisms used to curb agency discretion—Congressional 

oversight, Executive and judicial review. There are many examples that highlight 

this lack of empirically-grounded research and writing on the administrative state. 

As Professor Jody Freeman pointed out in her testimony before this Subcommittee 

in 2005, an often-repeated statistic was that 80% of EPA rules were challenged in 

court; the only problem was that this had no basis in fact as one study demonstrated. Another often repeated statistic is that 90% of agency action is ‘‘informal’’—that is, it does not follow procedures specified in the APA—but, after tracing 

the origin of this statistic, I found that the author of the statistic represented it as 

a ‘‘guess.’’

The first most important step to setting a course for the future is the investment 

of resources in careful study of the most pressing issues that arise across a range 

of agencies. This Subcommittee’s leadership has started us down that road, and I 

will speak in a moment about work that advances that objective. But I do not have 

any doubt that more remains to be done. 

Careful and systematic study is not an easy task and that is one reason why there 

is not enough of it. The administrative state is incredibly complex. Agencies have 

distinctive statutory mandates—some distribute benefits, some regulate the market, 

some protect the nation. They also follow different processes and have distinctive 

designs—Commission, Administrator, Cabinet level or not Cabinet level. They adVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 00405 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230

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dress a dizzying variety of tasks in varied ways. That complexity makes systematic 

and generalizable research very difficult to conduct. 

At the same time, it is clear that administrative agencies are not so distinctive 

that one cannot generalize about their behavior and draw conclusions about what 

may trouble us about the soundness or wisdom of their activities. Of course, most 

agencies are subject the basic template provided for in the Administrative Procedure 

Act. More than that, though, many agencies share similar substantive tasks—they 

must rely on scientific judgments to do their business or they manage large benefit 

programs or they are in the business of licensing firms before they enter the market. 

Looking across agencies to determine and assess how they perform these tasks is 

obviously a worthwhile endeavor. Agencies are also subject to similar controls. They 

are the object of close oversight by Congress, the Executive, and/or the federal 

courts. Thus, despite the enormous complexity of the administrative state, there are 

common issues and problems that affect a large set of agencies such that cross-agency study will repay enormous dividends and will guide administrative reforms. 

To figure out where we go from here, then, we must invest the resources to study 

the general issues that affect a substantial number of agencies and, if warranted, 

identify problems and formulate solutions. I would emphasize that those resources 

must be put in the hands of people who will approach their study in a systematic 

way. In my view, such studies must rely on the time-tested methods of social scientific inquiry, rather than the haphazard gathering of data or, worse, anecdote. It 

is only careful study that can establish the facts of the matter and thus provide a 

sound basis for identifying problems that need to be rectified. 

There are several promising signs that such study is starting to occur. In part, 

these developments are due to the efforts and vision of the Members and staff of 

this Subcommittee and the CRS. Re-authorization of ACUS has generated enormous 

enthusiasm in the administrative law community. The studies that this Subcommittee’s efforts have spawned—Professor West’s work on public participation in rulemaking that we are hearing about today and Professor Freeman’s study of judicial 

review of administrative action—are important efforts that will advance our understanding and clarify what, if anything, is needed in the way of law reform. More 

than that, in my corner of the world, an increasing number of my peers are convinced of the need for empirical study of the administrative state and an increasing 

number of people in law teaching have the necessary training to engage in rigorous 

empirical work. 

II. ESTABLISHING AN ACCURATE PICTURE OF THE ADMINISTRATIVE STATE’S ACTIVITY

For the past several years, I have been working with a colleague to complete what 

I just testified was the most important step to take before we could identify what 

comes next—that is, we have been working on a project to find out exactly where 

we are now. My colleague is Professor Steven Croley at the University of Michigan 

Law School and we have been working together to provide a comprehensive empirical picture of federal agency decision-making. We have received several grants to 

support our work, including from the Milton and Miriam Handler Foundation and 

the Olin Foundation. Our goal, in the most general terms, is to describe what agencies do and how that has changed over time. 

Our project will present detailed data on the frequency and type of decisions that 

federal agencies make, both across agencies and across time. Our book explains the 

legal parameters of agencies’ primary decision making tools—including legislative 

rulemaking, adjudication, litigation, and agency guidance—and provides as in depth 

data as is available about the frequency, including change in frequency over time, 

of agency reliance on those tools. Our data is presented in the aggregate (how many 

rules across the federal government and how has that changed over time) as well 

as agency by agency. We also identify patterns in that data. Our project is heavily 

descriptive, but we also provide narrative explanation of why, when, and how federal agencies make decisions, and we plan to address various normative questions 

implicated by our empirical findings as well. 

Professor Croley and I undertook this project because, as students of the administrative state, we were frustrated by the lack of comprehensive information about 

agency decision-making. Most administrative law scholarship focuses primarily on 

judicial review of agency decision making. While obviously important, judicial reaction to agency work product is only one window onto the activities of the administrative state. Meanwhile, political scientists and economists who write about agency 

behavior are not generally attentive to the legal differences among the agencies’ policymaking tools. As teachers of administrative law, we found no work that examined 

empirically the range and frequency of procedures agencies employ. More than that, 

no work provides a ready general source of data about the form and frequency of 


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administrative agencies’ legal work-product. Our motivation for undertaking this 

project has been primarily to supply what is missing—certain basic, comprehensive 

facts—about agency behavior and agency decision-making. 

Our effort has several goals. Most basically, we aim to shed descriptive light on 

fundamental but understudied questions about federal agency decision-making. For 

example: Exactly how often do agencies engage in rulemaking and adjudication 

processes under APA? Which agencies do so the most, and which the least? Have 

agencies engaged in more or less rulemaking, and adjudication, over time (and adjusting for variables like population, GNP, and legislative activity)? In addition, how 

many of which different types of rules—‘‘regulatory rules,’’ ‘‘redistributive rules,’’ ‘‘governmental housekeeping rules,’’ etc.—have agencies issued over recent years? 

How many staff have agencies committed to the adjudication processes over time? 

How many times do agencies sue to enforce their statutory mandates and how, if 

at all, has that changed over time? How often are agencies sued and required to 

defend their exercises of authority and how, and if so, has that changed over time? 

A related goal of our project is to provide others with an empirical base from 

which others can draw their own conclusions about administrative government. We 

hope to inspire others to enlist the data we supply to advance their own research 

on agency behavior. Abstract discussions of administrative government should be 

grounded as much as possible in concrete facts about what agencies really do, and 

the facts we present will inform others’ work. 

Last but not least, we engage in analyses ourselves, practicing what we preach. 

That is, in addition to presenting the facts about the type and volume of agency activities, we consider how those facts might connect to perennial normative debates 

about, for example, executive versus legislative control of agencies, agency accountability and independence, and the appropriate size and role of the federal government, among others. We also explore our descriptive findings by running several 

statistical tests to evaluate hypotheses related to normative discussions of agency 

activity. For example, we investigate whether certain agency decision-making procedures increase or decrease with Republican or Democratic administrations, or in 

times of divided or undivided government, among other things. 

We have collected data from a very wide variety of sources. In identifying sources, 

we had a strong preference for data collected across a large number of agencies, and 

collected by neutral entities at regular intervals. We wished to avoid collecting data 

agency by agency because of the risks of inconsistency this raises. Our sources are 

largely available from various government sources. The data come from, for example, Office of Personnel Management, GAO, the Regulatory Information Service Center, Office of Information and Regulatory Affairs at OMB, the General Services Administration, Executive Office of the United States Attorneys, and the Administrative Office of the U.S. Courts. Much of it is available in a raw form that must be 

analyzed and aggregated to be meaningful and appropriate for generalization. Most 

of the labor of our project consists of the legwork of finding, compiling, and aggregating data across many different sources, and then organizing and presenting that 

data in meaningful ways. 

We are still in the process of producing our book. But in January of 2006, at the 

annual meeting of the American Association of Law Schools, we presented some of 

our preliminary findings. I will recount for you some of what we reported there. 

The core of the book are chapters devoted to each of the major policy making tools 

available to agencies—rulemaking, adjudication, government litigation, and guidance. Let me provide a few highlights of our findings about rulemaking, adjudication, and government litigation: 

*Rules: Knowing how many rules are promulgated each year depends on the type 

of rule as well as the classification system of the entity that collects the information. 

‘‘Rule’’ is a legal term of art and there are different definitions of rule and different 

types of rules. But, two sources, RISC and GAO, provide the most useful aggregate 

data on the number of rules issued each year. Relying one these data sources, we 

have come to the following preliminary conclusions. 

First, agencies together issue just over 4,000 final rules per year, an amount reflecting a gradual decline since the early 1980s, when they issued just over 6,000 

rules a year. Second, about 66% of all final rules come from agencies whose heads 

report to cabinet secretaries, while only about 10% percent come from the independent agencies, down from about 20% percent two decades ago. The remaining 

25% come from executive-branch agencies, like the EPA, whose heads do not report 

to cabinet secretaries but to the President. 

Considering proposed rather than final rules, the same general pattern emerges. 

Agencies now publish about 2,700 proposed rules a year, down from over 3,500 in 

the early and mid-1980s. Here, however, independent agencies publish a bigger 

share, 15–20% of proposed rules, with non-cabinet executive agencies publishing 


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just barely more than that, and the remaining 60% then coming from cabinet agencies. 

Not all rules, however, have a substantive effect. Somewhere between 1,000 and 

1,200 rules issued each year have a substantive effect. Among substantive rules, between about 500 and 700 rules each year are far-reaching enough to trigger White 

House review. The number was closer to 500 in the late 1990s, and approximates 

700 each year since 2000. Of those, about 45 to 75 per year constitute huge rules 

with an estimated annual impact on the economy of more the $100 million. 

*Adjudication: Tracking adjudication in the federal government is difficult because there are different types of adjudicators—Administrative Law Judges (ALJs) 

and Presiding Officers (POs)—who preside over evidentiary hearings and there is 

no current governmentwide collection of data on the number of adjudications conducted each year. For one putting together an accurate empirical picture of administrative adjudication, the primary sources are OPM personnel data, two publications 

by the ACUS in the late 1970s, and two surveys of non-ALJ adjudications conducted 

in 1989 and 2002. 

The vast majority of ALJs in the federal government adjudicate cases in the Social Security Administration. SSA ALJs have, since 1991, always constituted more 

than 72% of the total ALJs in the federal government. After SSA, the next highest 

employers of ALJs are Labor, NLRB, and the Energy Department. 

In the aggregate, from 1991 through 2004, the total number of ALJs increased 

by 13%, from 1191 to 1341. This increase occurred during a period when total government employment declined by 15%. 

But the 13% increase in the number of ALJs was not consistent across agencies. 

Social Security Administration ALJs increased by 31% while the number of non-SSA 

ALJs declined 37% between 1991 and 2004. In other words, the number of adjudicators who are implementing regulatory programs declined while those adjudicating 

benefits have increased. 

Many who adjudicate cases in the federal government are not ALJs. We know 

from two surveys that there are several thousand POs conducting evidentiary hearings. In a 1989 survey, the author found 2,692 POs and this number increased to 

3,370 according to a follow-up survey conducted in 2002. As of the 2002 survey, the 

largest number POs were in the Justice Department’s Executive Office for Immigration Review, the Veterans Administration, and the IRS and the largest number of 

cases decided by POs were in EOIR, the IRS, and the Appeals Council of the SSA. 

*Government Litigation: One window onto to the administrative state is to observe litigation on behalf of agencies in the courts. This includes affirmative litigation—called ‘‘US as plaintiff’’ litigation—brought by the federal government as well 

as litigation where the government is defending against a challenge to its activities—called ‘‘US as defendant.’’ The Administrative Office of the Courts and the Executive Office of U.S. Attorneys each track this litigation. 

A look at those data are revealing on a variety of fronts, but the most dramatic 

descriptive trend is the dramatic decline in ‘‘US as plaintiff’’ litigation. The Administrative Office of the Courts reports that US plaintiff litigation declined by two thirds 

in a 14 year period. In 1990, there were 30,000 US plaintiff cases and this declined 

to 10,000 in 2004. During the same period, US as defendant litigation increased dramatically, from just under 25,000 cases to nearly 40,000 cases. 

The Executive Office of the US Attorneys reports similar data, although their data 

track agency litigation more precisely because the reports categorize litigation based 

on the client agency that US Attorneys are representing. From 1991 through 2003, 

overall civil cases handled by US Attorneys declined by 11%. But US plaintiff cases 

declined by 60% while US defendant cases increased by 11%. Affirmative litigation 

on behalf of every agency that DOJ represents declined, except the Interior Department. 

This whirlwind tour of statistics provides just a slice of the data we will present 

in our book. As you can see, our goal is to provide an accurate and systematic picture of the activities of the administrative state. It is our hope that this sort of 

grounding will be a basis for moving forward by identifying the right questions to 

ask. And the data raise many questions: Why, in the last five years, are there more 

‘‘significant’’ rules being forwarded to OIRA for review? What accounts for the rise 

in POs? Why is the number of regulatory ALJs declining? Why has US Plaintiff litigation declined so dramatically? 


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III. WHERE DO WE GO FROM HERE?

So I return to the question I started with, namely, where do we go from here? 

As I said at the outset, I do not know where we go next because of the dearth of 

sound and careful work about where we are now. I am absolutely confident that further study is necessary to identify problems and formulate solutions. And the reauthorized ACUS provides an opportunity to move forward. Once funding is secured, 

many will clamor to fund various research projects. They may disagree on the priority, but few will disagree about the central need for more and more rigorous work 

about what is occurring at agencies. And there are many worthy research projects. 

In the fall of 2005, you heard testimony from Professor Jeffrey Lubbers, Mr. Mort 

Rosenberg, and Professor Jody Freeman, all suggesting possible avenues for research of a reconstituted ACUS. I have read their testimony and believe they made 

extremely valuable suggestions. I will add a few of my own to the list. My suggestions are not detailed proposals for study, but what I view to be the most important 

general areas for research. 

External Agency controls: To my mind, a central question about agency activity 

is whether and how the various oversight mechanisms that are in place for agencies 

work. Agencies are subject to control and oversight by Congress, by the Executive, 

and they are subject to judicial review by courts. Asking about the function and efficacy of these control mechanisms is probably the most important question we can 

be asking. Thankfully, there is work that has been and is being done on these areas. 

Professor Croley has carefully studied the White House Review of agency rules and 

Professor Freeman is now engaged in her own comprehensive study of judicial review of agencies. These two studies are notable for their systematic—as opposed to 

ad hoc-approach and they have and will teach us a lot. But we need to do more because these external controls on agencies are so important and it is a complex enterprise to assess their efficacy. In my view, we are just at the beginning of building 

an accepted base of knowledge and moving toward conclusions about the wisdom 

and efficacy of these control mechanisms. 

Internal Agency Controls: Another promising area for research is to get inside the 

agency and study how agencies make their important decisions. My own research 

has made me very interested in why it is agencies choose to implement their mandates in such different ways, some relying heavily on adjudication, others relying 

heavily on rules. But there are many other questions, for instance: When and why 

do agencies adopt enforcement guidelines? How do they organize internal appeals 

from front-line decision makers? How do they set their regulatory priorities? These 

questions about the internal decision making process of agencies are central to understanding why they behave the way they do and, as a result, are worthy of sustained attention. 

Effectiveness of Rules. Many have noted that we have no way to determine the 

effectiveness of rules after they are in place. Among other things, we presently have 

no mechanism to determine whether the projections contained in the cost-benefit 

analysis when the rule is adopted turn out to be accurate in the long-run. Answering this question may not answer questions about the overall efficacy of regulations, 

but it would be a useful question to ask and, more importantly, it is just the sort 

of analytic task that a think tank arm of government could design and conduct. A 

research program aimed at identifying the promising ways to go about assessing the 

costs and benefits after implementation and comparing them to earlier projections 

would be a worthy enterprise. 

Thank you for inviting me here today. I am gratified by the interest this Subcommittee has shown in the efficacy and fairness of administrative process.


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RESPONSE TO POST-HEARING QUESTIONS FROM PROFESSOR WILLIAM WEST, THE

BUSH SCHOOL OF GOVERNMENT AND PUBLIC SERVICE, TEXAS A&M UNIVERSITY, 

COLLEGE STATION, TX


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RESPONSE TO POST-HEARING QUESTIONS FROM PROFESSOR MARSHALL BREGER, THE

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RESPONSE TO POST-HEARING QUESTIONS FROM PROFESSOR M. ELIZABETH MAGILL, 

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RESPONSE TO POST-HEARING QUESTIONS FROM PROFESSOR CARY COGLIANESE, 

UNIVERSITY OF PENNSYLVANIA LAW SCHOOL, PHILADELPHIA, PA


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Æ


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U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001

28–782 PDF 2006

REGULATORY FLEXIBILITY IMPROVEMENTS ACT

HEARING BEFORE THE

SUBCOMMITTEE ON 

COMMERCIAL AND ADMINISTRATIVE LAW OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

ON

H.R. 682

JULY 20, 2006

Serial No. 109–134

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 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL ISSA, California 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

CHRIS VAN HOLLEN, Maryland 

DEBBIE WASSERMAN SCHULTZ, Florida

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 

TRENT FRANKS, Arizona 

STEVE CHABOT, Ohio 

MARK GREEN, Wisconsin 

J. RANDY FORBES, Virginia 

LOUIE GOHMERT, Texas 

MELVIN L. WATT, North Carolina 

WILLIAM D. DELAHUNT, Massachusetts 

CHRIS VAN HOLLEN, Maryland 

JERROLD NADLER, New York 

DEBBIE WASSERMAN SCHULTZ, Florida

RAYMOND V. SMIETANKA, Chief Counsel 

SUSAN A. JENSEN, Counsel 

BRENDA HANKINS, Counsel 

MIKE LENN, Full Committee Counsel 

STEPHANIE MOORE, Minority Counsel 


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C O N T E N T S 

JULY 20, 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

WITNESSES 

The Honorable Thomas M. Sullivan, Chief Counsel for Advocacy, United 

States Small Business Administration, Washington, DC 

Oral Testimony ..................................................................................................... 5

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

Mr. J. Christopher Mihm, Managing Director for Strategic Issues, United 

States Government Accountability Office, Washington, DC 

Oral Testimony ..................................................................................................... 19

Prepared Statement ............................................................................................. 21

Mr. J. Robert Shull, Director of Regulatory Policy, OMB Watch, Washington, 

DC 

Oral Testimony ..................................................................................................... 38

Prepared Statement ............................................................................................. 40

David Frulla, Esquire, Kelley Drye Collier Shannon, Washington, DC 

Oral Testimony ..................................................................................................... 48

Prepared Statement ............................................................................................. 50

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 ........................................................................ 3

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Revised Prepared Statement of J. Robert Shull, Director of Regulatory Policy, 

OMB Watch, Washington, DC ............................................................................ 69

Prepared Statement of the Honorable Donald A. Manzullo, a Representative 

in Congress from the State of Illinois, and Chairman, Committee on Small 

Business ................................................................................................................ 78

Letter from Robert D. Evans, Director, Governmental Affairs Office, American 

Bar Association (ABA) ......................................................................................... 82

Response to Post-Hearing Questions from the Honorable Thomas M. Sullivan, 

Chief Counsel for Advocacy, United States Small Business Administration, 

Washington, DC ................................................................................................... 86

Response to Post-Hearing Questions from J. Christopher Mihm, Managing 

Director for Strategic Issues, United States Government Accountability Office, Washington, DC ........................................................................................... 91

Response to Post-Hearing Questions from J. Robert Shull, Director of Regulatory Policy, OMB Watch, Washington, DC ..................................................... 94

Response to Post-Hearing Questions from David Frulla, Esquire, Kelley Drye 

Collier Shannon, Washington, DC ...................................................................... 133


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(1)

REGULATORY FLEXIBILITY

IMPROVEMENTS ACT 

THURSDAY, JULY 20, 2006

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COMMERCIAL

AND ADMINISTRATIVE LAW, COMMITTEE ON THE JUDICIARY, Washington, DC.

The Subcommittee met, pursuant to notice, at 12:19 p.m., in 

Room 2141, Rayburn House Office Building, the Honorable Chris 

Cannon (Chairman of the Subcommittee) presiding. 

Mr. CANNON. Now, the Subcommittee will please come to order. 

Thank you, all. We apologize for being long on that vote. And my 

understanding is Mr. Watt is on his way and will join us momentarily, but we do have Mr. Coble, though, so we will get started. 

Mostly, we will avoid boring Mr. Watt by not having to listen to 

my opening statement, which, actually, I think is sort of interesting. 

I want to begin with some fairly astounding facts. First, according to OMB, no one has ever tabulated the sheer number of Federal regulations that have been adopted since the passage of the 

Administrative Procedure Act of 1946. 

Second, and perhaps even more astounding, is the fact that OMB 

states that most of these existing Federal rules have never been 

evaluated to determine whether they have worked as intended and 

what their actual benefits and costs have been. We do know their 

costs have been high. 

Last year, the Office of Advocacy for the Small Business Administration issued a report estimating that the annual cost to comply 

with Federal regulations in the United States in 2004 exceeded 

$1.1 trillion. It reported if every household received a bill for an 

equal share, each household would have owed $10,172, an amount 

that exceeds what the average American household spent on health 

care in 2004, which was slightly under $9,000. 

I think these facts underscore several critical needs. Most importantly, we need to get the Administrative Conference of the United 

States up and running. As many of you know, I drafted bipartisan 

legislation that was signed into law in the last Congress that reauthorized ACUS. For 25 years, the Conference played an invaluable 

role as the Federal Government’s in-house adviser on and coordinator of administrative procedural reforms. 

I am in fact paraphrasing from a letter that the American Bar 

Association sent earlier this week to the Senate Appropriations 

Committee seeking funding for ACUS. With unanimous consent, I 


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would like to submit this letter for inclusion to the record, and 

hearing no objections, so ordered. 

Second, these facts underscore the urgent need for continuing 

and aggressive congressional oversight over the regulatory process. 

To that end, the Subcommittee on Commercial and Administrative 

Law, at the request of the House Judiciary Committee Chairman 

Jim Sensenbrenner, with support of Ranking Member John Conyers, is conducting a comprehensive review of administrative law, 

process and procedure. 

This project, which is being guided by the Congressional Research Service, will culminate with the issuance of a final report 

and the publication of the results of various studies focusing on 

succinct issues presented by the rule-making process. Third, these 

problems underscore the need for legislative redress. H.R. 682, I 

believe, is a very good start. 

Essentially, this legislation addresses several significant shortcomings of the Regulatory Flexibility Act. Enacted in 1980, the act 

requires Federal agencies to assess the impact of proposed regulations on small entities, which the act defines as either a small business, small organization or small governmental jurisdiction. 

One of the principal purposes of the act was to reduce unnecessary and disproportionately burdensome demands that Federal regulatory and reporting requirements placed on small entities. For 

example, the act requires agencies to prepare a regulatory flexibility analysis at the time certain proposed and final rules are promulgated. Among other things, the analysis must describe the reasons why action by the agency is necessary and identify any significant alternatives to the rule. 

This analysis is not required, however, if the agency certifies that 

the rule will not have a significant economic impact on a substantial number of small entities. Since its enactment in 1980, however, 

certain recurring deficiencies with the act have been identified. The 

GAO on numerous occasions has cited the act’s uneven implementation and lack of clarity. I expect Mr. Mihm, who appears today 

on behalf of the GAO, will be able to elaborate on these concerns. 

In response to these problems, Representative Don Manzullo, 

who Chairs the House Committee on Small Business, introduced 

H.R. 682, the Regulatory Flexibility Improvement Act. On unanimous consent, I ask that the record include a statement from the 

bill’s author, Representative Manzullo. 

Hearing none, so ordered. 

[The prepared statement of Mr. Manzullo is published in the Appendix.] 

Mr. CANNON. H.R. 682 consists of a comprehensive set of reforms 

intended to encourage Federal agencies to analyze and uncover less 

costly alternative regulatory approaches and to ensure that all effects, including foreseeable indirect effects, of proposed and final 

rules are considered by agencies during the rulemaking process. 

The legislation currently has 18 cosponsors, including me, and is 

supported by the United States Chamber of Commerce and the National Federation of Independent Business. It is against this exceedingly interesting backdrop that we are holding this legislative 

hearing today. 


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When Mr. Watt arrives, we will turn to him for any comments 

that he would like to make. Without objection, his entire statement 

and any other Members who wish to submit a statement will be 

placed in the record. 

Hearing no objection, so ordered. 

Without objection, all Members may place—we just did that. 

Without objection, the Chair will be authorized to declare recesses 

at any point of the hearing. 

Hearing no objection, so ordered. 

I ask unanimous consent that Members have 5 legislative days 

to submit written statements for inclusion in today’s hearing 

record. 

Hearing no objection, so ordered. 

[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 COM- MERCIAL AND ADMINISTRATIVE LAW

The Subcommittee will please come to order. 

I want to begin this hearing by noting some fairly astounding facts. First, according to OMB, no one has ever tabulated the sheer number of federal regulations that 

have been adopted since passage of the Administrative Procedure Act in 1946. Second, and perhaps even more astounding, is the fact that OMB states that ‘‘most of 

these existing federal rules have never been evaluated to determine whether they 

have worked as intended and what their actual benefits and costs have been.’’ Last year, the Office of Advocacy for the Small Business Administration issued 

a report estimating that the annual cost to comply with federal regulations in the 

United States in 2004 exceeded $1.1 trillion. It reported, ‘‘Had every household re- ceived a bill for an equal share, each would have owed $10,172, an amount that exceeds what the average American household spent on health care in 2004 (slightly 

under $9,000).’’ I think these facts underscore several critical needs. Most importantly, we need 

to get the Administrative Conference of the United States up and running. As many 

of you know, I drafted bipartisan legislation that was signed into law in the last 

Congress that reauthorized ACUS. For 25 years, the Conference played an invaluable role as the federal government’s in-house advisor on—and coordinator of—administrative procedural reform. I’m in fact paraphrasing from a letter that the 

American Bar Association sent earlier this week to the Senate Appropriations Committee seeking funding for ACUS. With unanimous consent, I would like to submit 

this letter for inclusion in the record. Hearing no objection, so ordered. 

Second, these facts underscore the urgent need for continuing and aggressive Congressional oversight of the regulatory process. To that end, the Subcommittee on 

Commercial and Administrative Law—at the request of House Judiciary Committee 

Chairman Jim Sensenbrenner and support of Ranking Member John Conyers—is conducting a comprehensive review of administrative law, process and procedure. 

This project, which is being guided by the Congressional Research Service, will culminate with the issuance of a final report and the publication of the results of various studies focusing on succinct issues presented by the rulemaking process. 

Third, these problems underscore the need for legislative redress. H.R. 682, I believe, is a very good start. Essentially, this legislation addresses several significant 

shortcomings of the Regulatory Flexibility Act. Enacted in 1980, the Act requires 

federal agencies to assess the impact of proposed regulations on ‘‘small entities,’’

which the Act defines as either a small business, small organization, or small governmental jurisdiction. One of the principal purposes of the Act was to reduce unnecessary and disproportionately burdensome demands that federal regulatory and 

reporting requirements place on small entities. 

For example, the Act requires agencies to prepare a regulatory flexibility analysis 

at the time certain proposed and final rules are promulgated. Among other things, 

the analysis must describe the reasons why action by the agency is necessary and 

identify any significant alternatives to the rule. This analysis is not required, however, if the agency certifies that the rule will not have a ‘‘significant economic impact on a substantial number of small entities.’’ Since its enactment in 1980, however, certain recurring deficiencies with the Act 

have been identified. The GAO on numerous occasions has cited the Act’s uneven 


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implementation and lack of clarity. I expect Mr. Mihm, who appears today on behalf 

of the GAO, will be able to elaborate on these concerns. 

In response to these problems, Representative Don Manzullo, who chairs the 

House Committee on Small Business, introduced H.R. 682, the Regulatory Flexibility Improvements Act. 

H.R. 682 consists of a comprehensive set of reforms intended to encourage federal 

agencies to analyze and uncover less costly alternative regulatory approaches and 

to ensure that all effects—including foreseeable indirect effects—of proposed and 

final rules are considered by agencies during the rulemaking process. 

The legislation currently has 18 cosponsors, including myself, and is supported by 

the United States Chamber of Commerce and the National Federation of Independent Businesses. 

It is against this exceedingly interesting backdrop that we are holding this legislative hearing today.

I am now pleased to introduce the witnesses for today’s hearing. 

Our first witness is Tom Sullivan, who is the Chief Counsel for Advocacy at the Small Business Administration. The Office for Advocacy was created in 1976 to serve as the watchdog for small businesses as they interact with the Federal Government. 

Last year, the office helped save America’s small businesses more 

than $6.6 billion they would have otherwise had to spend in order 

to comply with Federal regulations, a truly commendable accomplishment. 

Prior to assuming his current responsibilities at the Office of Advocacy, Mr. Sullivan was the Executive Director of the National 

Federation of Independent Business’s Legal Foundation, which provides guidance on legal issues to small businesses and promotes a 

pro-small business agenda in the Nation’s courts. We are now a big 

Nation of small businesses, overwhelmingly. 

Mr. Sullivan received his undergraduate degree in English from 

Boston College and his law degree from Suffolk University in Boston. 

Our next witness is Chris Mihm, who is the Managing Director 

of GAO’s strategic issues team, which focuses on Government-wide 

issues with the goal of promoting a more results-oriented and accountable Federal Government. The strategic issues team has examined such matters as Federal agency transformations, budgetary 

aspects of the Nation’s long-term fiscal outlook, and civil service reform. 

As many of you know, Mr. Mihm testified last year before our 

Subcommittee regarding the administrative law, process and procedure project that I previously described, and, welcome back, Mr. 

Mihm. 

Mr. Mihm is a fellow of the National Academy of Public Administration and he received his undergraduate degree from Georgetown 

University. 

Our next witness is J. Robert Shull, who serves as the director 

of regulatory policy at OMB Watch. OMB Watch is a nonprofit research and advocacy organization that seeks to promote Government accountability, citizen participation in public policy decisions 

and the use of fiscal and regulatory policy to serve the public interest. 

Before joining OMB Watch in 2004, Mr. Shull was a training 

specialist and child advocate. In that capacity, he worked at Children’s Rights, a nonprofit advocacy organization based in New York 

that represents the interests of abused and neglected children. Mr. 


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Shull obtained his undergraduate degree from the University of 

Virginia and his law degree from Stanford Law School. 

David Frulla is our final witness. Mr. Frulla is a partner with 

the law firm of Kelley, Drye, Collier, Shannon, where he is a member of the firm’s litigation, environmental law and Government relations and public policy practice groups. Prior to joining Kelley 

Drye, Mr. Frulla was a founding partner and principal of Brand 

and Frulla PC, which specialized in civil, criminal and administrative advocacy before Federal and State courts and administrative 

agencies. 

Mr. Frulla also serves as Chair of the Criminal Process Committee of the American Bar Association’s Administrative Law and 

Regulatory Practice Section. Mr. Frulla received his undergraduate 

degree summa cum laude from Dartmouth College and his law degree from University of Virginia Law School. 

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 record, I 

request that you limit your oral remarks to 5 minutes. Accordingly, 

feel free to summarize and highlight the salient points of your testimony. 

You will note that we have a lighting system that starts with the 

green. After 4 minutes, it turns to yellow and then at 5 minutes 

turns red. It is my habit to tap the gavel at 5 minutes. We would 

appreciate if you would finish up your thoughts about that time. 

We don’t want to cut anybody off, and I find that it works much 

better—we are actually not overflowing with Members who have 

questions to ask today—so it is not as serious as sometimes it is. 

So, if we could do that, we will have a significant amount of time, 

I think, to discuss your issues during questioning. After you 

present your remarks, the Subcommittee Members, in the order 

that they arrived, will be permitted to ask questions of the witnesses, subject to the 5-minute rule, which I will, depending upon 

how many people come, enforce more or less strictly. 

Pursuant to the directive of the Chairman of the Judiciary Committee, I ask the witnesses to please stand and raise your right 

hand to take the oath. 

Do you swear or affirm under penalty of perjury that the testimony you are about to give is true and correct to the best of your 

knowledge, information and belief? 

The record should reflect that all of the witnesses answered in 

the affirmative. 

You may be seated. 

Mr. Watt, would you like to make an opening statement? 

Mr. WATT. No, just welcome the witnesses. Thank you for being 

here. 

Mr. CANNON. Mr. Sullivan, would you proceed with your testimony? 

TESTIMONY OF THE HONORABLE THOMAS M. SULLIVAN, 

CHIEF COUNSEL FOR ADVOCACY, UNITED STATES SMALL 

BUSINESS ADMINISTRATION, WASHINGTON, DC 

Mr. SULLIVAN. Thank you, Mr. Chairman, Ranking Member Mr. 

Watt. I will try to be brief and actually try to go under the 5 minVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 00435 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230

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utes. Thank you for already including my written statement in the 

record. 

The first part of my statement really goes through the history of 

the Regulatory Flexibility Act, and it is, I think, an important 

starting point. Why do we have an act that requires agencies to especially consider their impact on small business? 

Well, I think that it is no surprise that we are a Nation, a big 

Nation, of small businesses, and those businesses are well known 

for being the job creators, the innovators and the community leaders. And there was a realization in 1980 that not only is small 

business the economic engine of the United States, but they bear 

a disproportionate impact when it comes to Federal rules and regulations. So shouldn’t there be a law that tries to level that playing 

field for small businesses? 

And that law is, in fact, the Regulatory Flexibility Act. It was 

amended in 1996 by the Small Business Regulatory Enforcement 

Fairness Act. In 1996, Congress realized that the requirement, or 

the encouragement, for agencies to do a small business impact 

analysis maybe just isn’t enough incentive for agencies to do that. 

And so in 1996, Congress actually amended the RFA to include judicial review, so that if agencies do not conduct small business impact analysis and consider less burdensome alternatives, then they 

can be taken to court and a court will tell them to do so. 

The most recent update to the Regulatory Flexibility Act actually 

came in 2002, when President Bush signed an executive order—

and, again, that was an affirmation of small businesses’ importance 

to this country, and an affirmation or realization that small businesses continue to bear a disproportionate regulatory impact, and 

even more work needs to be done to level the playing field. 

This executive order really encourages agencies even more to do 

the type of small business impact analysis and work with my office 

than ever before, and it is working. The Regulatory Flexibility Act 

is working, and I certainly don’t want anyone to proceed in this 

hearing to think that we are fixing an absolutely broken law. That 

is just not the case. 

My testimony bears out that we are saving billions of dollars by 

filtering out parts of rules and regulations that don’t make sense 

for small business, and by filtering them out, you are leveling the 

playing field without compromising regulatory protections, while 

still protecting the environment, protecting workplace safety, protecting our Nation’s borders. 

While the Reg Flex Act is working, it is not working perfectly, 

and now is the time where you look at the law, much like this 

Committee looks at the Administrative Procedure Act and has 

amended it close to 60 times over the past several years. It is time 

to look at the Regulatory Flexibility Act and ask, ‘‘How can it work 

better?’’ And H.R. 682 plugs many, if not all, of the loopholes that 

are contained in the Regulatory Flexibility Act. 

My office believes that the biggest loophole that needs to be 

closed is indirect impact. Agencies right now are required to examine how their rules will impact those who are directly regulated. 

But that doesn’t extend to the logically foreseeable secondary impacts, tertiary impacts, and I believe it is the Government’s responsibility to inform the public before finalizing rules and regulations 


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how will this rule work? How will it impact consumers? How will 

it impact the tourist industry? How will this rule impact homeowners and community leaders? 

Those are the types of secondary and tertiary impacts that are 

sometimes ignored because the Reg Flex Act doesn’t require it. 

H.R. 682 plugs that loophole. 

There are other loopholes that exist in the Regulatory Flexibility 

Act. My statement goes in some detail into how H.R. 682 cures that 

and I am happy to answer any questions about the particulars of 

682 or the Committee’s curiosity on how my office works to enforce 

the Regulatory Flexibility Act. 

[The prepared statement of Mr. Sullivan follows:]


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PREPARED STATEMENT OF THE HONORABLE THOMAS M. SULLIVAN


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Mr. CANNON. Thank you, Mr. Sullivan. 

Mr. Mihm? 

TESTIMONY OF J. CHRISTOPHER MIHM, MANAGING DIRECTOR 

FOR STRATEGIC ISSUES, UNITED STATES GOVERNMENT ACCOUNTABILITY OFFICE, WASHINGTON, DC 

Mr. MIHM. Thank you, Mr. Chairman, Mr. Watt. It is, again, a 

great honor to appear before you again today and to contribute to 

your review of the Regulatory Flexibility Act and your continuing 

broad examination of administrative law processes and procedures. 

My written statement provides an overview of the basic purpose 

and requirements of the RFA, the main impediments to the act’s 

implementation and the elements of RFA that Congress might consider amending to improve the effectiveness of the act. In the interest of brevity, this afternoon I will just hit the highlights of those 

issues. 

As Mr. Sullivan mentioned in his opening statement, RFA was 

enacted in response to concerns about the effect Federal regulations can have on small entities. Among other things, RFA prompts 

regulatory agencies to analyze the potential effects of the rules on 

those entities, consider alternatives to reduce the burden of those 

rules and ensure that small entities have an opportunity to participate in the rule-making process. 

As you mentioned in your opening statement, Mr. Chairman, in 

response to congressional requests, we have reviewed RFA’s implementation on many occasions over many years, going back to the 

early 1990’s. My bottom line today is that our prior reports have 

illustrated both the promise and the problems associated with RFA, 

with the recurring theme being the varying interpretations of 

RFA’s requirements by Federal agencies. Although some progress 

has undoubtedly been made to address issues we identified, the full 

promise of the Regulatory Flexibility Act may never be realized 

until Congress either clarifies terms and definitions in the act or 

provides an agency with the clear authority and the responsibility 

to do so. 

It is also important to keep in mind the domino effect that an 

agency’s initial determination of whether the Regulatory Flexibility 

Act is applicable to rule-making has on other statutory requirements. These other requirements can include, for example, preparing compliance guides for small entities and periodically reviewing existing regulations. 

More specifically, unclear terms and definitions can affect the applicability and effectiveness of regulatory reform requirements. We 

have frequently cited the need to clarify key terms in RFA, particularly—and this is the 800-pound gorilla, as it were—′′the significant economic impact on a substantial number of small entities.’’ RFA’s requirements do not apply, as Mr. Sullivan mentioned, if an 

agency head certifies that a rule will not have that significant economic impact on a substantial number of small entities. 

However, RFA neither defines this key phrase, nor places responsibility on any party to determine it consistently across the Government. It is therefore not surprising that compliance with RFA has 

varied from one agency to another and that agencies have had different interpretations of the act’s requirements. 


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We have examined 12 years of annual reports from the Office of 

Advocacy, basically Tom’s shop, and that these reports showed that 

compliance with RFA varied across agencies, within agencies and 

over time, a conclusion obviously shared by the Office of Advocacy 

in its own reports. 

We noted that some agencies have been repeatedly characterized 

as satisfying the requirements, but other agencies have been 

viewed as less compliant over time. 

One of the reasons for the agencies’ lack of compliance with the 

Regulatory Flexibility Act requirements is that the act did not expressly authorize the SBA to interpret key provisions and did not 

require SBA to develop criteria for agencies to follow in reviewing 

their rules. 

It is important to note at this point that the Office of Advocacy’s 

2003 RFA compliance guide, while reiterating that the RFA does 

not define certain terms, nevertheless provides some suggestions 

for agencies on the subject. 

While the guidance and the associated training for agencies appear to have been very helpful, the key will be the degree to which 

agencies effectively and consistently apply that guidance and that 

training. In that regard, none of us know whether or not yet the 

extent or if the guidance and training has really made a substantive improvement in agencies’ efforts to clarify some of the 

longstanding confusion about RFA requirements. We believe additional scrutiny and congressional monitoring of the RFA compliance may help to answer that question. 

Well, let me just conclude there and say once again that I appreciate the opportunity to testify on these important issues and obviously would be pleased to take any questions you or Mr. Watt 

might have. 

[The prepared statement of Mr. Mihm follows:]


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PREPARED STATEMENT OF J. CHRISTOPHER MIHM


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Mr. CANNON. Thank you, Mr. Mihm. We are actually sort of on 

a roll here. We had two people finish before the yellow light. 

Mr. MIHM. We take your guidance, sir. 

Mr. CANNON. I think you did this before, Mr. Mihm. Welcome 

back. 

Mr. Shull, you are recognized for 5 minutes. 

TESTIMONY OF J. ROBERT SHULL, DIRECTOR OF 

REGULATORY POLICY, OMB WATCH, WASHINGTON, DC 

Mr. SHULL. Thank you very much, and thank you, Mr. Chairman 

and Mr. Watt, for having me before you to talk about this really 

important issue. 

I want to start from the simple proposition that no agency is in 

the business of producing regulations for the sake of producing regulations. We ask our agencies to produce regulations to protect the 

public, to protect all of us who are breathing the air, drinking the 

water, all of the men and women of America who have to work for 

a living and go to a job where they want to be safe and healthy. 

And small businesses, like all businesses, contribute to the hazards that we face, when we are breathing the air, drinking the 

water, going on the job, driving on the highways. And it really 

doesn’t matter to all of us, to someone who is breathing dirty air 

or drinking poisoned water, whether the hazards that we are suddenly experiencing have been put there into our environment by 

small businesses or large businesses. 

But I also want to start from the proposition that small businesses want to be good corporate citizens, and that the best intention for helping small businesses and recognizing the fact that 

small businesses do face a different kind of hurdle than their larger 

counterparts when trying to comply with regulations, might need 

some assistance. But that the answer isn’t to give them a free pass 

in any way, that the answer isn’t to burden the agencies whose job 

it is to protect the public, but rather to help small businesses comply. 

We did hear that regulations have produced some costs for the 

economy and for the businesses who have to comply with them, but 

I think we also have to recognize that the benefits of regulation 

have been extraordinary. I mean, you can even look and measure 

in terms of I.Q. points when we took out lead from gasoline and 

now that kids aren’t breathing that lead in from the air. You can 

see the measurable benefits, and that is one of many, many examples. 

I also want to recognize that, although the Reg Flex Improvements Act that we are looking at today has a lot of concerns about 

regulation and whether or not they are hindering the competitiveness of American business in the global marketplace, that the economics literature out there just doesn’t support the case that in 

America our regulations are somehow hindering our businesses 

from competing. 

You can look at evidence of, say, plant location decisions. When 

we have environmental regulations, do plants that manufacture 

goods suddenly move to areas where there are less stringent environmental regulations? Or you can look at the trade flows: when 

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tensive goods start coming in from developing nations to developed 

nations? And that link just hasn’t been shown. 

And because of that concern, we really think that there is no 

basis for the Reg Flex Improvements Act that we are looking at 

today. And I am concerned that it will really hinder the agencies 

from doing the good job that they are doing of protecting the people. I am concerned that the analysis itself that agencies have to 

perform under the Reg Flex Act will become more burdensome. 

I mean, already, there is a signal in the bill that a succinct statement is not enough, that we have to have a very detailed explanation. The burden will increase through the scope of it. It would 

no longer apply just to rule makings that go through the APA notice and comment process, but now it would also apply to guidance 

documents, general policy statements, interpretive rules, and land 

management plans, that the periodic re-reviews of rules under the 

Reg Flex Act, which were for 10-year reviews of rules found to have 

a SEISNOSE, a significant economic impact on a substantial number of small entities. Since the Regulatory Flexibility Act went into 

effect, that those now go back to all the rules on the books, even 

the rules that we know, like the ban on lead in gasoline, just are 

incredibly important, proven protections. 

We are also concerned about SBREFA panels now applying not 

just to EPA and OSHA rules, which we think were bad enough—

it is giving business interests a first bite at the apple for those 

rules, but also applying to a significant number of other rules. We 

are also concerned about the SBA Office of Advocacy being put in 

a compromised position: if it is given regulatory authority over implementing the new requirements of the Reg Flex Improvements 

Act, that will compromise their role as an independent voice of 

small business. 

And we think that there is a better way. We have outlined some 

in our prepared statement, and I would like to offer a more complete version of that statement for the record after this hearing. 

[The prepared statement of Mr. Shull follows:]


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PREPARED STATEMENT OF J. ROBERT SHULL


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Mr. CANNON. Thank you. Let us just ask unanimous consent that 

you have 5 additional days to submit that. Would that be sufficient? 

Mr. SHULL. Thank you very much. 

Mr. CANNON. Without objection, so ordered. And, frankly, we understand that you were drawn into this late. That was a compelling 

statement given what apparently was a short time to prepare, and 

we thank you for being here. 

Mr. Frulla, you are recognized for 5 minutes. Thank you. 

TESTIMONY OF DAVID FRULLA, ESQUIRE, KELLEY DRYE 

COLLIER SHANNON, WASHINGTON, DC 

Mr. FRULLA. Thank you, Mr. Chairman, Mr. Ranking Member. 

My perspective on the Regulatory Flexibility Act is as a 10-year 

litigant. I have had over a dozen cases regarding six different agencies, rule-making proceedings, and we have prevailed about half 

the time. And we have gotten some substantive results. These 

aren’t always things that are high profile, above-the-radar issues. 

In one case, we ended up with a settlement that involved a scientific re-review of a 67 percent reduction in a quota for sharks 

that were caught in the Gulf and Atlantic. 

That review showed there was no scientific basis for that quota 

cut. Again, not every regulation is lead in gasoline. There is a lot 

that the Government does. Sometimes it goes awry. There needs to 

be checks and balances there. The Regulatory Flexibility Act is an 

important tool. 

And I would also note that a Regulatory Flexibility Act victory 

is only a first step. It is often a long haul to get an agency to 

change course. And I also have to tell you, and it is probably not 

a news flash to anybody here, that Federal agencies don’t always 

listen to Federal judges. 

So SBREFA was a step in the right direction and this new legislation, H.R. 682, and equally importantly, the congressional attention that is being paid to the RFA, are right on point. Litigation 

does impose discipline. We get to see after 10 years weaknesses in 

the law that litigation shows in the same way as cross examination, but on the legal side. 

I would like to applaud especially H.R. 682’s efforts to clarify jurisdictional issues and timing issues. We lay this out extensively in 

my written testimony. To address the foreseeable indirect effects, 

let me give you one example. A couple of years ago, I think it was, 

Congress wanted to impose cost-containment standards on what 

they call WIC-only vendors in the Women, Infant and Children 

Food and Nutrition Program. 

And it was clear that there were to be stores that are WIC-only 

vendors, that essentially service that community, that were to be 

regulated and were to have their costs contained. However, the 

States regulated that level and the directive was for the States to 

make these changes. 

That is outside the Regulatory Flexibility Act as it currently 

stands, even though these small businesses were clearly the target, 

and the intended target. We also think it is going to be important 

to crystallize the Office of Advocacy’s role in establishing how other 

agencies do reg-flex analyses. We had a case with the EPA at one 


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point, and the EPA’s reg flex guidance asks the question in terms 

of determining economic impact as what the impact of the regulation is on a business’s gross revenues. 

They say, we don’t need to look at profitability, and they said, 

well, you know, a 1 percent hit on gross revenues, that is not much. 

Well, it is a lot if you only have a 4 percent profit margin. But the 

court said the EPA had the discretion to use its own standards. 

That is something else that needs to be looked at, and that is something that the SBA has issued guidance on. 

Other issues we note, the standard of review. Normally, there is 

essentially what they call a good-faith standard. It is kind of backing up from an arbitrary and capricious standard. That is starting 

to get pretty toothless in many cases. 

I have addressed that in the testimony, some good results and 

some bad results. We submit that the arbitrary and capricious 

standard ought to apply to the no significant impact determinations. Clearly in the law, it is in the legislative history, and the 

same when the final regulatory flexibility analyses are reviewed. 

It also should be stated that application of the Reg Flex Act to 

a particular rule ought to be handled under the de novo standard, 

as should the question of whether an agency has flexibility under 

a given law. Another case we had, one page of law ended up with 

47 pages of regulations and the agency said that they had no flexibility, and it was all required. That doesn’t seem to make sense. 

Three other points I would like to mention quickly, expedition. 

Questions of whether the Regulatory Flexibility Act applies should 

be expedited. We are waiting 6 years for a final decision, when we 

know the answer from the D.C. circuit that the Reg Flex Act applies to nationwide permitting under the Clean Water Act. Attorneys’ fees, got to put a plug in for that. If a small business prevails, 

they should be able to be awarded attorneys’ fees. A victory on reg 

flex is only the start, and it shouldn’t be a war of attrition. And, 

finally, make sure the Office of Advocacy has the resources they 

need. 

Thank you very much. 

[The prepared statement of Mr. Frulla follows:]


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Mr. CANNON. Thank you, Mr. Frulla. 

I appreciate all your testimony, and I recognize myself for 5 minutes to ask some questions. 

It sounds like there is consensus that there are some improvements we can make and we need to try and achieve that in addressing this bill. 

Mr. Shull, recognizing you didn’t have time to prepare, and you 

have heard what the other witnesses have said, I don’t want to put 

you on the spot in this regard, but do you either have things that 

you would like to propose that we do better in the Regulatory 

Flexibility Act, or things that you have heard today—do things 

come to mind that you would oppose as you consider what has been 

said today? 

Mr. SHULL. Yes, sir. I actually think that if the goal is to serve 

small businesses, that there are better ways other than the Reg 

Flex to go about serving that need. And, actually, something that 

would be in the jurisdiction of this Committee—and that would 

serve not just small businesses but really all of us—might be to 

look at the petitions for rule-making under the APA. 

Because it can take a really long time for either public interest 

groups who have identified a need for new protections or more increased protections, or for business groups that have identified a 

standard that is out of date and they have a new way, a better 

way, of going about it. 

With the petition for rule-making process, what we can do is 

bring to the agencies a specific rule that needs to be improved and 

call for specific improvements. But the agencies can take a really 

long time to respond to the petitions or to do anything about it once 

they have recognized the need for improvement. I mean, it took 

over 10 years, and I don’t know how many court battles, to get 

OSHA, after it recognized the need for improving the standard on 

hexavalent chromium, to actually get about the work of doing it, 

of protecting workers. 

So I think that that would be a better approach, something that 

is evenhanded that applies to business groups and public interest 

groups as well, and anybody else out there who sees a need for improvement, and it is more targeted. It doesn’t drain the agencies’

resources into going back and reopening the case for rules that we 

already know need to stay on the books and for just really sort of 

this meat ax approach, a clumsy approach, as opposed to a focused, 

targeted approach, where small businesses can bring up the rules 

they think need to be fixed, other groups can pull up needs that 

need to be met. 

I mean, there are other approaches as well, and there I think 

things outside of this Committee’s jurisdiction that might also be 

very helpful for small businesses, that would help businesses comply without burdening agencies or without giving them a free pass 

from regulatory compliance. And one of them would be compliance 

assistance and making sure that there are compliance assistance 

offices in every congressional district, that can go about the work 

of helping small businesses understand what regulations they need 

to comply with and to help them figure out how to go about doing 

it. 


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Plain language in regulation—if it is easier for businesses or anybody else to read the regulations and understand them. There was 

a bipartisan bill that Mrs. Miller and Mr. Lynch over on the Government Reform Committee proposed that would not do a thing 

about weakening regulatory standards, but just change the language in which they are written so that they are easier to comply 

with. 

I think that is another way for reducing cost without reducing 

the level of protection. And there are other ideas—for example, the 

small business gateway I have heard proposed—basically, informational resources, helping small businesses get the information they 

need in order to go about the work of being a good corporate citizen, which I think that we all agree they want to be. 

Mr. CANNON. Thank you. Have you been involved at all with our 

APA review process? 

Mr. SHULL. Actually, I haven’t, but I have followed it from afar 

and I look forward to getting more involved. 

Mr. CANNON. It has been a little bit arcane in the sense of hidden away, boxed up in an ark with some very, very smart people 

working on it. I am hoping that we can move that at some phase 

into a Wikipedia format so that it is online and people can contribute. I think that might be an easy way for you to get engaged 

and see what academics and others are looking at and bring it 

down to the real world of advocacy that you are thinking of. 

And we would invite you and you may want to talk to staff about 

how you can be engaged prior to that if you are interested. We appreciate your ideas. 

Mr. SHULL. I appreciate that. 

Mr. CANNON. I don’t know if you know, we have a hearing next 

week on the 60th anniversary of the APA. 

Mr. SHULL. I will be here. 

Mr. CANNON. An arcane area of the law, but really actually, in 

the end, the most important. Thank you. My time has expired. 

Mr. Watt, you are recognized for 5 minutes. 

Mr. WATT. Thank you, Mr. Chairman, and I thank the witnesses 

for being here, apologize for being a little late. 

At the end of the day, I guess this is about a bill that is before 

us and whether it is supportable as written. I think I heard Mr. 

Shull’s opinion on that. I am not sure I heard anybody else’s. 

Mr. Sullivan, do you support H.R. 682 as written, or, if not, is 

there another, better bill? I understand there is a bill pending on 

the Senate side, S. 1388. Which one of those is better? 

Mr. SULLIVAN. Both bills improve the Regulatory Flexibility Act. 

A little bit of a dilemma in H.R. 682, if it were passed into law tomorrow or next week, my office does not have the resources to implement it effectively. 

The Senate bill that you refer to is a more targeted approach and 

contains many of the needed reforms of 682. 

Mr. WATT. Mr. Mihm, does the Administration support this 682? 

Can you speak for the Administration? 

Mr. MIHM. GAO, the Government Accountability Office. I was actually hoping Mr. Sullivan would take the whole 5 minutes, but 

since he didn’t, I will have to answer your question. 


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As a congressional support agency, we don’t typically support legislation——

Mr. WATT. I am sorry, and I am not trying to put you on the 

spot. 

Mr. MIHM. But I will say, sir, that many of the types of concerns 

that our work has identified in the past about the lack of standardization and clarity in the RFA are, is what the bill is designed to 

address. In that sense, those types of legislative actions would be 

a step forward. 

Mr. WATT. Mr. Sullivan, you have mentioned secondary and tertiary indirect impacts on small business. I was kind of shuddering 

to think if the current law requires an assessment of direct impact, 

I can’t even think of anything that wouldn’t have some secondary, 

tertiary, indirect impact on small business and whether we are setting Government agencies up to spend all their time evaluating 

secondary, tertiary, indirect impacts. It seems to me burdensome 

enough to require them, expect them to do an assessment of what 

is foreseeable, not an academic exercise of what may be some possible impact. 

Talk to me about the cost of secondary, tertiary, indirect impact 

analysis, if you would. 

Mr. SULLIVAN. Thank you, Congressman Watt. H.R. 682 actually 

balances that very question that you asked, and it does so by, I believe, expecting or mandating agencies to do impact analysis on 

those impacts that are reasonably foreseeable. 

Let me use an actual case example of how this works, because 

the words secondary and tertiary I think do——

Mr. WATT. And that compares with what is the current standard? 

Mr. SULLIVAN. Currently, when an agency regulates, they look at 

who must comply directly with a regulation. After September 11th, 

when the then-referenced agency, INS, decided to limit visitor 

visas, they were limiting foreign visitors who come to the United 

States the time allowed to stay in the United States. Those were 

the direct impact of an INS-proposed rule. 

Now, how it should work, and what H.R. 682 would require INS 

to do, is to say, all right, is border security important? Yes. Let us 

look at how long we know visitors in the United States, foreign 

visitors, are legally in the United States, do the analysis. 

Now, who is impacted by limiting that length of stay? Tourism, 

high-end vacation homes, pouring millions of dollars into many destination spots, millions of dollars for Canadians crossing the border 

and going to destination spots in the United States. That type of 

analysis, the analysis of looking, well, if we limit their stay to 15 

days, this is the economic impact, if we limit their stay to 30 days, 

here is the economic impact—that type of analysis, which actually 

is not very difficult, is all secondary impact analysis. 

And my office——

Mr. WATT. So you are talking about foreseeable under this——

Mr. SULLIVAN. Reasonably. 

Mr. WATT. Reasonably foreseeable under this bill. What is the 

language in the current——

Mr. SULLIVAN. The language is silent on that, and, in fact, the 

courts have interpreted it only to require direct impact. So INS did 


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not violate the letter of the law as it has been interpreted in courts, 

and David Frulla’s testimony mentions those court decisions, as 

well as my testimony. 

But, when you step back, you have got to think, shouldn’t INS 

have informed the public through the notice and comment process 

that you are more familiar with your understanding of the Administrative Procedure Act to say, we are thinking of limiting visitor 

stay. And we are thinking of limiting those foreign visitors for 

about 15 days, as opposed to the current 30-day period. This is how 

we believe it will impact travel agencies, tourist destinations, white 

water rafting and outfitting companies, and we want you, the public, to comment on that type of analysis. 

That does not happen now under the Reg Flex Act, but it should 

happen, because it informs the regulatory process, and it informs 

agencies like INS on how to have a better, more well-informed regulation that is finalized. That is the need for the secondary impact 

analysis. 

Mr. WATT. There is nothing in the bill that really requires a tertiary impact? You are just talking about reasonably foreseeable? 

Mr. SULLIVAN. Reasonably foreseeable. And, again, it gets at 

what should agencies be doing that is responsible to inform the 

rule-making process? All over the country, we have States who are 

left in the position through delegated laws, whether that be environmental laws, safety and health laws, that passed these enormous mandates by the Federal Government that says protect the 

environment and you figure it out. Comply with the Clean Air Act 

standards, but you figure out how you regulate your own State. 

And these folks don’t have chief counsels for advocacy. They don’t 

have reams of chief economists. They need help in the Federal Government to actually lay out, here is how it may impact when you 

choose these different decisions. So there is a responsibility, I 

think, to help the State regulators figure out what should they be 

doing that is both cost effective and protective through the regulatory regimen that they are faced with. 

Mr. WATT. I am way out of time, but if the Chairman will indulge me, and I would like to get——

Mr. CANNON. I can’t see the red light. 

Mr. WATT. Mr. Mihm said he doesn’t want to comment on which 

one of these bills is better. I did want to get Mr. Frulla on the 

record about whether he prefers the Senate bill or this bill, and 

even in light of Mr. Shull’s disposition not to be doing any of this, 

I guess, even in that context, whether just kind of a straightforward one or two sentences on which one of these bills you would 

prefer. Just for the record. 

Mr. FRULLA. I will be intensely practical. I think that the Senate 

bill is a little more targeted. This is obviously a little more thoroughgoing a bill. The most important thing is for folks to start to 

get to the business of reconciling these bills so that we can get the 

law fixed in a constructive way that everybody can agree on and 

work together on. 

I think the bills ought to come together, same place as Mr. Sullivan, essentially, and I think it is an important thing to do. And 

I don’t want a little bit of disagreement on the margins to be someVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 00497 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230

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thing that holds this up because this is important to a lot of small 

businesses. 

Mr. WATT. Mr. Shull? 

Mr. SHULL. I think maybe the way I can say it is by saying that 

although we object to the core elements that are there in both bills, 

it is worth noting that the Senate version of this bill does not have 

the sections that would give new regulatory authorities to the SBA 

Office of Advocacy, which we find a particularly additional problematic element of the bill. Because the voice of small business, we 

think, shouldn’t be in the business of telling agencies how to comply with the law. 

Mr. WATT. Rather than telling them what is too burdensome. 

Mr. SHULL. Right. 

Mr. WATT. Okay, thank you, Mr. Chairman. 

I thank the witnesses. That was very informative. 

Mr. CANNON. The gentleman yields back. 

Let me also thank the witnesses. 

I ask unanimous consent that the record be left open for 10 days 

for follow-up questions by Members of the panel. Without objection, 

so ordered. 

Thank you for coming. This has been actually quite insightful, 

very interesting. 

And I know, Mr. Shull in particular, the idea of speedy decisions, 

we are plagued today with a number of cases where agencies are 

just not deciding, and that is in some cases bad for business. Often, 

it is bad for consumers, and so we look forward to your suggestions 

if we ever get to a public forum with our APA review, which I think 

would be helpful. 

Because I that, I think, is really the key to business. Industry 

moves so quickly, things happen so quickly in America today, a 

danger that didn’t exist yesterday is here today and devastating. 

Perhaps tomorrow, the opportunity for business to significantly 

improve the quality of their products by having standards like the 

FDA’s good manufacturing practices for nutritional supplements, 

we are just waiting for them. It doesn’t really matter much what 

they are. They just need to be there and then consumers will have 

an idea of what they are getting, what the quality is of what they 

are getting. 

So the opportunity to improve how we regulate ourselves I think 

is significant. So we thank you for being here today. 

And, with that, we will adjourn. 

[Whereupon, at 1:06 p.m., the Subcommittee was adjourned.] 


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MATERIAL SUBMITTED FOR THE HEARING RECORD

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POLICY, OMB WATCH, WASHINGTON, DC


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PREPARED STATEMENT OF THE HONORABLE DONALD A. MANZULLO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS, AND CHAIRMAN, COMMITTEE ON

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LETTER FROM ROBERT D. EVANS, DIRECTOR, GOVERNMENTAL AFFAIRS OFFICE, 

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RESPONSE TO POST-HEARING QUESTIONS FROM THE HONORABLE THOMAS M. SULLIVAN, CHIEF COUNSEL FOR ADVOCACY, UNITED STATES SMALL BUSINESS ADMINISTRATION, WASHINGTON, DC


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RESPONSE TO POST-HEARING QUESTIONS FROM J. CHRISTOPHER MIHM, MANAGING

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U.S. GOVERNMENT PRINTING OFFICE

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26–770 PDF 2006

10TH ANNIVERSARY OF THE

CONGRESSIONAL REVIEW ACT

HEARING BEFORE THE

SUBCOMMITTEE ON 

COMMERCIAL AND ADMINISTRATIVE LAW OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

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MARCH 30, 2006

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033006.AAB
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COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL ISSA, California 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

CHRIS VAN HOLLEN, Maryland 

DEBBIE WASSERMAN SCHULTZ, Florida

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 

TRENT FRANKS, Arizona 

STEVE CHABOT, Ohio 

MARK GREEN, Wisconsin 

RANDY J. FORBES, Virginia 

LOUIE GOHMERT, Texas 

MELVIN L. WATT, North Carolina 

WILLIAM D. DELAHUNT, Massachusetts 

CHRIS VAN HOLLEN, Maryland 

JERROLD NADLER, New York 

DEBBIE WASSERMAN SCHULTZ, Florida

RAYMOND V. SMIETANKA, Chief Counsel 

SUSAN A. JENSEN, Counsel 

BRENDA HANKINS, Counsel 

MIKE LENN, Full Committee Counsel 

STEPHANIE MOORE, Minority Counsel 


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C O N T E N T S 

MARCH 30, 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

WITNESSES 

Mr. J. Christopher Mihm, Managing Director for Strategic Issues, U.S. Government Accountability Office, Washington, D.C. 

Oral Testimony ..................................................................................................... 5

Prepared Statement ............................................................................................. 7

Mr. Morton Rosenberg, Esq., Specialist in American Public Law, American 

Law Division of the Congressional Research Service, Library of Congress, 

Washington, D.C. 

Oral Testimony ..................................................................................................... 19

Prepared Statement ............................................................................................. 21

Mr. Todd F. Gaziano, Esq., Senior Fellow in Legal Studies, and Director, 

Center for Legal and Judicial Studies, The Heritage Foundation, Washington, D.C. 

Oral Testimony ..................................................................................................... 23

Prepared Statement ............................................................................................. 26

Mr. John V. Sullivan, Esq., Parliamentarian, Office of the Parliamentarian, 

U.S. House of Representatives, Washington, D.C. 

Oral Testimony ..................................................................................................... 38

Prepared Statement ............................................................................................. 39

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Mr. J. Christopher Mihm, Managing Director for Strategic Issues, U.S. Government Accountability Office, Washington, D.C.: Letter dated May 12, 

2006, response to question from the Subcommittee .......................................... 52

CRS Report for Congress by Mr. Morton Rosenberg ‘‘Congressional Review 

of Agency Rulemaking: An Update and Assessment of the Congressional 

Review Act After Ten Years’’ .............................................................................. 55


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10TH ANNIVERSARY OF THE

CONGRESSIONAL REVIEW ACT 

THURSDAY, MARCH 30, 2006

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON COMMERCIAL

AND ADMINISTRATIVE LAW, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met, pursuant to notice, at 2:43 p.m., in Room 

2141, Rayburn House Office Building, the Honorable Chris Cannon 

(Chairman of the Subcommittee) presiding. 

Mr. CANNON. I’d like to call the Subcommittee to order. 

We’re here to—by the way, thank you, Howard. Thank you for 

being here. I want to thank Mr. Coble for being with us to start 

the hearing. 

We’re here today to look at the Congressional Review Act, a law 

passed to provide Congress with a tool in the oversight of administrative rulemaking. In the last 10 years, more than 41,828 rules 

have been reported to Congress under the Congressional Review 

Act. 

When Congress passes complex legislation, it often leaves many 

details to the agencies authorized to enforce the laws, and this 

body must remain vigilant over those details and how they are 

filled in by the agencies through congressional oversight. 

The Congressional Review Act established a mechanism for Congress to review and disapprove Federal agency rules through an expedited legislative process. It requires agencies to report to Congress and to the Comptroller General with information to help us 

assess the merits of the rules. 

Now, today, we have a panel of experts who are here, who are 

going to be discussing this process in greater detail. As our panel 

of expert witnesses will attest, there are some areas of the CRA 

that could be changed to make it a more effective tool for Congress. 

Today’s hearing is part of the Administrative Law Process and 

Procedure Project that our Subcommittee is spearheading. The objective of the project is to conduct a nonpartisan, academic analysis 

of the Federal rulemaking process. 

Scholars and experts from academic and legal institutions and 

organizations across the Nation are involved in this project. The 

project will conclude with a detailed report, including recommendations for legislative proposals and suggested areas for further research and analysis to be considered by the Administrative Conference of the United States. 


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As you may recall, my legislation reauthorizing ACUS was 

signed into law in the fall of 2004. The Administrative Conference 

is a nonpartisan public think tank—public-private think tank that 

proposes recommendations, which, historically, have improved administrative aspects of regulatory law and practice. 

ACUS served as an independent agency charged with studying 

the efficiency, adequacy, and the fairness of the administrative procedure used by Federal agencies. Most of the recommendations 

made by ACUS were implemented and, in turn, helped save taxpayers millions of dollars. 

Unfortunately, ACUS has yet to receive appropriated funds. The 

Congress must fund ACUS so that it can continue to provide valuable recommendations for improving the administrative law process. 

Justice Breyer, in his testimony to the Subcommittee, noted that 

the conference’s recommendations resulted in huge savings to the 

public. Let’s work to bring that savings back into reality. 

I look forward to testimony from our witnesses. 

[The statement of Mr. Cannon follows:]

PREPARED STATEMENT OF OPENING STATEMENT OF THE HONORABLE CHRIS CANNON, 

CHAIR, SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW, FOR THE OVERSIGHT HEARING ON THE 10TH ANNIVERSARY OF THE CONGRESSIONAL REVIEW ACT

We are here today to look at the Congressional Review Act, a law passed to provide Congress with a tool in the oversight of administrative rulemaking. In the last 

ten years, more than 41,828 rules have been reported to Congress under the Congressional Review Act. 

When Congress passes complex legislation, it often leaves many of the details to 

the agencies authorized to enforce the laws. This body must remain vigilant over 

those details and how they are filled in by the agencies through congressional oversight. 

The Congressional Review Act established a mechanism for Congress to review 

and disapprove federal agency rules through an expedited legislative process. It requires agencies to report to Congress and the Comptroller General with information 

to help us assess the merits of the rules. 

Today we have a panel of experts here who are going to be discussing this process 

in greater detail. As our panel of expert witnesses will attest, there are some areas 

of the CRA that could be changed to make it a more effective tool for Congress. 

Today’s hearing is part of the Administrative Law, Process and Procedure Project 

that our Subcommittee is spearheading. The objective of the Project is to conduct 

a nonpartisan, academic analysis of the federal rulemaking process. 

Scholars and experts from academic and legal institutions and organizations 

across the nation are involved in this Project. 

The Project will conclude with a detailed report, including recommendations for 

legislative proposals and suggested areas for further research and analysis to be 

considered by the Administrative Conference of the United States. 

As you may recall, my legislation reauthorizing ACUS was signed into law in the 

fall of 2004. ACUS is a nonpartisan ‘‘public-private think tank’’ that proposes recommendations which, historically, improved administrative aspects of regulatory 

law and practice. ACUS served as an independent agency charged with studying the 

efficiency, adequacy, and fairness of the administrative procedure used by federal 

agencies. 

Most of the recommendations made by ACUS were implemented, and, in turn, 

helped save taxpayers millions of dollars. Unfortunately, ACUS has yet to receive 

appropriated funds. The Congress must fund ACUS so that it can continue to provide valuable recommendations for improving the administrative law process. Justice Breyer, in his testimony to the Subcommittee, noted that the Conference’s recommendations resulted in a ‘‘huge’’ savings to the public. Let’s work to bring that 

savings back into reality. 

I look forward to the testimony from our witnesses.


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Mr. CANNON. When Mr. Watt arrives, we’ll recognize him for an 

opening statement, if he would like to do that. 

And at this point, without objection, all Members may place their 

statements in the record. Hearing no objection, so ordered. 

Mr. CANNON. Without objection, the Chair will be authorized to 

declare recesses of the hearing at any point. Hearing none, so ordered. 

Oh, and at this point, we’d like to recognize Mr. Coble for an 

opening statement. 

Mr. COBLE. Mr. Chairman, I will not give an opening statement. 

I will commend you for having assembled a very distinguished 

panel, and I look forward to hearing from them. 

I have another meeting, however, simultaneously scheduled. So 

I will probably be in and out. 

But I thank you, Mr. Chairman. 

Mr. CANNON. I thank the gentleman. 

I ask unanimous consent that Members have 5 legislative days 

to submit written statements for inclusion in today’s hearing 

record. Without objection, so ordered. 

I am now pleased and honored to introduce the witnesses for today’s hearing. 

Our first witness is Chris Mihm, who is the managing director 

of GAO’s Strategic Issues Team, which focuses on government-wide 

issues with the goal of promoting a more results-oriented and accountable——

[Pause.] 

Mr. CANNON. We would certainly not like this Committee to be 

interrupted by what happens on the floor of the House. 

We were talking about the Strategic Issues Team, which focuses 

on government-wide issues with the goal of promoting a more results-oriented and accountable Federal Government. The Strategic 

Issues Team has examined such matters as Federal agency transformations, budgetary aspects of the Nation’s long-term fiscal outlook, and civil service reform. 

Mr. Mihm is a fellow of the National Academy of Public Administration, and he received his undergraduate degree from Georgetown University. 

Our second witness is Mort Rosenberg, a specialist in American 

public law in the American Law Division of the Congressional Research Service. In all matters dealing with administrative law, 

Mort has been the Judiciary Committee’s right hand. For more 

than 25 years, he has been associated with CRS and has appeared 

before this Committee a number of times. 

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 we welcome you back Mr. Rosenberg. 

Todd Gaziano is our third witness. He is a senior fellow in legal 

studies and the director of the Center for Legal and Judicial Studies at The Heritage Foundation. Mr. Gaziano has served in all 

three branches of government. 

In the executive branch, he worked at the U.S. Department of 

Justice in the Office of Legal Counsel during the Reagan, Bush, 

and Clinton administrations. In the judicial branch, he was a law 


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clerk in the 5th Circuit Court of Appeals for the Honorable Edith 

Jones. 

And between 1995 and 1997, he was the chief counsel to the 

House Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs. During that time, he was involved 

in regulatory reform legislation, including the Congressional Review Act of 1996. Mr. Gaziano graduated from the University of 

Chicago Law School. 

Our fourth witness is Mr. John Sullivan, the Parliamentarian for 

the U.S. House of Representatives. This is an interesting experience to actually testify, isn’t it? 

Mr. Sullivan has served in the House of Representatives since 

1984 as a counsel for the House Armed Services Committee, then 

as Assistant Parliamentarian and Deputy Parliamentarian before 

he was appointed as the Parliamentarian by the Speaker during 

the 108th Congress. 

Prior to coming to the Hill, Mr. Sullivan served 10 years in the 

Air Force. He’s a graduate of the U.S. Air Force Academy and 

earned his law degree from the Indiana University School of Law. 

This is only the second time that a sitting Parliamentarian has 

testified in front of a House Committee. The first was on the same 

subject a year after the Congressional Review Act was passed. We 

truly appreciate your testimony today and your taking time out to 

do this. 

Just as a side note, I understand, Mr. Sullivan, that your grandfather was Lefty Sullivan, one of the pitchers for the 1919 White 

Sox’s. I had no idea, thank you. I am guessing that he would have 

been very happy with the White Sox season last year? That’s great. 

I extend to each of you my appreciation for your willingness to 

participate in today’s hearing. Because your written statements 

will be included in the 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. Green means 4 

minutes, yellow means 1 minute, and red means you’re out of time. 

Generally, we’re pretty loose with that, and depending on whether 

we have people here to ask questions, we may be more or less 

loose. But, I want to let you know that it’s a travel day for some 

folks, and so we’d like to pay some attention to that. 

After you’ve presented your remarks, the Subcommittee Members, in the order they arrive, will ask questions of the witnesses, 

and they’ll be subject to the 5-minute limit. And, we’re going to be 

quite strict with that one. 

I ask unanimous consent that Members have 5 legislative days 

to submit additional questions for the witnesses. Hearing no objection, so ordered. 

Pursuant to the directive of the Chairman of the Judiciary Committee, I ask the witnesses to please stand and raise your right 

hand to take the oath. 

[Witnesses sworn.] 

Mr. CANNON. The record should reflect that all of the witnesses 

answered in the affirmative. You may be seated. 

Mr. Mihm, would you please go ahead with your testimony? 


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TESTIMONY OF J. CHRISTOPHER MIHM, MANAGING DIRECTOR 

FOR STRATEGIC ISSUES, U.S. GOVERNMENT ACCOUNTABILITY OFFICE, WASHINGTON, D.C. 

Mr. MIHM. Thank you, Mr. Chairman. Mr. Chairman, Mr. Coble, 

it’s indeed, a great honor to appear before you today to discuss the 

Congressional Review Act. 

As you mentioned in your opening statement, Mr. Chairman, the 

CRA was enacted to ensure that Congress has an opportunity to 

review and possibly reject rules issued by executive agencies before 

they become effective. Under the CRA, two types of rules, major 

and nonmajor, must be submitted to both houses of Congress and 

GAO before they can be implemented. 

Taking your guidance, Mr. Chairman, I’ll limit my comments to 

discussing GAO’s role under CRA and the role that the CRA plays 

in the broader regulatory context. First, on the first point—GAO’s primary role under the CRA is to assess and to report to Congress, 

on each major rule, the relevant agency’s compliance with certain 

prescribed procedural steps. 

These requirements include preparation of a cost-benefit analysis 

when that is required, compliance with the Regulatory Flexibility 

Act, the Unfunded Mandates Reform Act—commonly known as 

UMRA, the Administrative Procedures Act, Paperwork Reduction 

Act, and relevant executive orders, including 12866. 

GAO’s report must be sent to the congressional committees of jurisdiction within 15 calendar days of the publication of the rule or 

submission of the rule by the agency, whichever is later. 

While the CRA is silent in regard to GAO’s role concerning 

nonmajor rules, we found that the basic information about those 

rules should also be collected in a manner that can be useful to 

Congress and the public. Specifically, since the CRA was enacted 

in 1996, we have received and submitted reports on 610 major 

rules and entered over 41,000 nonmajor rules into a database that 

we created and maintain. 

To compile information on all of the rules—that is, major and 

nonmajor—submitted to us under the CRA, we established this 

database, available to the public through the Internet. Our database gathers basic information about the 15 to 20 major and 

nonmajor rules that we typically receive each day, including the 

title, the agency, the type of rule, proposed effective date, date published in the Federal Register, other pertinent information, and 

any joint resolutions of disapproval that may have been introduced. 

Each year, we also seek to determine whether all final rules covered by the CRA and published in the Federal Register have been 

filed with both Congress and us. We do this review to both verify 

the accuracy of our database and to determine if agencies are complying with the CRA. 

We forward a list of unfulfilled rules to OMB for their handling, 

and in the past, they have disseminated the list to the agencies, 

most of which file the rules or offer an explanation of why they do 

not believe the rule is covered by the CRA. 

In the 10 years since the CRA was enacted, all major rules have 

been filed with us in a timely fashion. For nonmajor rules, the degree of compliance has remained fairly constant, but not as high, 

with roughly 200 nonmajor rules per year not filed with our office. 


033006.AAJ
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And, they’re the ones that we have to go after and go back to OIRA 

on. 

One major area of noncompliance with the CRA’s requirements 

has been that agencies have not always delayed the effective date 

of the major rules for the required 60 days. More specifically, agencies did not delay the effective date for 71 of the 610 major rules 

filed with our office. 

My written statement contains the agencies’ explanation for that, 

and as I note in the statement, we don’t view those as valid explanations. 

My second broad point this afternoon is that agencies and GAO 

have provided Congress a considerable amount of information 

about the forthcoming rules in response to the CRA. The limited 

number of joint Congressional resolutions might suggest that this 

information generates little additional oversight of rulemaking. 

However, as we have found in our review of the information generated on Federal mandates under UMRA, the benefits of compiling and making information available on potential Federal actions should not be underestimated. Further, as we’ve also found 

regarding UMRA, the availability of procedures for congressional 

disapproval may have some deterrent effect. 

My good CRS colleague Mort Rosenberg has reported that several rules have been affected by the presence of the review mechanism, suggesting that the CRA review scheme does have some influence in helping Congress maintain some transparency and oversight of the regulatory process. 

Let me add my statement at that point, Mr. Chairman, and I am 

happy to take any questions that you or any other Members of the 

Subcommittee may have. 

[The prepared statement of Mr. Mihm follows:]


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PREPARED STATEMENT OF J. CHRISTOPHER MIHM


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Mr. CANNON. Thank you. 

Mr. Rosenberg. 

TESTIMONY OF MORTON ROSENBERG, ESQ., SPECIALIST IN 

AMERICAN PUBLIC LAW, AMERICAN LAW DIVISION OF THE 

CONGRESSIONAL RESEARCH SERVICE, LIBRARY OF CONGRESS, WASHINGTON, D.C. 

Mr. ROSENBERG. Thank you very much, Mr. Chairman and Mr. 

Coble. 

I’m pleased to be here again, dealing with an important issue involved in our administrative law project. I have submitted a report 

of the 10 years of action under the CRA and also my statement for 

the record. Let me just make certain points, as quickly as I’m able 

to. As you know, I’m verbose. 

Point one is that when the House and Senate passed this legislation, they understood that they were addressing a fundamental institutional concern. That institutional concern involved the development of the administrative state, the fact that there is tremendous 

amount of delegation of rulemaking and law-making authority to 

the agencies, that those delegations are broad and vague, and that 

they’re absolutely necessary. 

Point two is that Congress, over the years, has been criticized as 

abdicating its responsibility with respect to oversight of those delegated authorities. The sponsors of the legislation said, and I quote, 

‘‘In many cases, this criticism is well founded. Our constitutional 

scheme creates a delicate balance between the appropriate roles of 

Congress in enacting laws and the executive branch in implementing those laws. This legislation will help address the balance, 

reclaiming for Congress some of its policymaking authority without 

at the same time requiring Congress to become a super regulatory 

agency.’’

Well, the statistics that have been compiled by GAO and reflected in their testimony and in my report indicate that those 

hopes seem to have been dashed. That, indeed, the anticipation 

that the agencies, because of the existence of the CRA, become a 

factor in the rule development process—a key factor—and level the 

playing field and provide the kind of regulatory accountability to 

Congress and the responsibility of Congress for overseeing it, appear to have been dashed. 

And indeed, events over the last decade have exacerbated very 

much the CRA, in addition to the flaws of the CRA. Some of the 

flaws—and the major ones, that I would pick out, the two major 

ones are the lack of a screening device for Congress to be able to 

identify particularly the rules that need to be looked at by Congress and the abense of an expedited procedure in the House for 

House consideration of a joint resolution of disapproval that is, you 

know, concurrent with and complementary to the Senate’s procedure. 

Again, as I said, compounding the problem of a flawed mechanism is the development of a strong presidential review process. 

That started with President Reagan’s establishment of the Office of 

Information and Regulatory Affairs as the clearinghouse for all 

rules during the—in the first month of the Reagan administration. 


033006.AAX
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Those executive orders were very, very effective, and Congress 

was well aware during the ’80’s and the—and the ’90’s of how effective those executive orders were in sensitizing the agencies to the 

President’s agenda and diverting it from Congress’ agenda and 

Congress’ intent in delegating authority with respect to certain 

kinds of rulemakings. 

Those executive orders and that concept of what has been called 

the new presidentialism have been continued—were continued during the Clinton administration and has continued today in the 

Bush administration. The administration of John Graham of OIRA 

has been even more effective than it was during the Reagan administration. 

Congress passed the CRA with that in mind and with the understanding that even during the Reagan administration, there was 

strong congressional opposition to presidential controls that were 

being developed at that particular time. 

More recently, what we have seen is what I would call a denigration by the Executive Branch of Congress’ abilities and Congress’

role in the law-making process and in the oversight process. In a 

very widely cited article, the current dean of the Harvard Law 

School posits the notions of the new presidentialism, and suggests 

that when Congress delegates administrative and law-making 

power specifically to a department or agency head, it is at the same 

time making a delegation of those authorities to the President himself, unless the legislative delegation specifically states otherwise. 

From this, she asserts, flows the President’s constitutional prerogative to supervise, direct, and control the discretionary actions 

of all agency officials. The author states that, and I quote, ‘‘A Republican Congress proved feckless in rebuffing Clinton’s novel use 

of directive power, just as an earlier Democratic Congress, no less 

rhetorically inclined, had proved incapable of thwarting Reagan’s 

use of a newly strengthened regulatory process.’’

And she goes on to explain that, ‘‘The reasons for this failure are 

rooted in the nature of Congress and the law-making process. The 

partisan and constituency interests of individual Members of Congress usually prevent them from acting collectively to preserve congressional power or, what is the same thing, to deny authority to 

other branches of the Government.’’

She then goes on to effectively deride the ability of Congress to 

restrain a President—a presidential intent on controlling the administration of the laws. She states, ‘‘Because Congress rarely is 

held accountable for agency decisions, its interest in overseeing 

much administrative action is uncertain. And because Congress’

most potent tools of oversight require collective action and presidential agreement, its capacity to control agency discretion is restricted. But viewed from the simplest perspective, presidential 

control and legislative control of administration did not present an 

either/or choice. Presidential involvement instead superimposes an 

added level of political control onto the congressional oversight system. That, taken on its own and for the reasons just given, has notable holes.’’

Dean Kagan’s observations were like a blueprint for what has 

been occurring during the Bush administration. 


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Let me conclude by saying that the CRA reflects a recognition of 

the need to enhance the political accountability of Congress and the 

perception of legitimacy and competence of the administrative rulemaking process. It also rests 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 decision, rejection of an attempted revival of the nondelegation doctrine, adds impetus for 

Congress to consider several facets and ambiguities of the current 

mechanism. Absent review, current trends of avoidance of notice 

and comment rulemaking, the lack of full reporting of covered rules 

under the CRA, limited judicial review, and what I’ve just pointed 

out, an increasing presidential control over the rulemaking process, 

is likely to continue. 

As I said, there are two major things that I think should be done 

to help ameliorate this. One is a screening mechanism, and the second is expedited procedures. One might say that, you know, putting 

them in legislation would be subject to presidential veto. But I believe that you could accomplish this by the action of Congress alone 

without presidential veto, and that would be utilizing Congress’ rulemaking authority. 

A joint committee that has power to screen and recommend with 

respect to—to the jurisdictional committees and send to the jurisdictional committees in the House and the Senate recommendations for disapproval resolutions can be established by concurrent 

resolution. 

An expedited procedure in the House needs only a resolution of 

the House to establish. And I think in determining whether—what 

the next step to do is it may be too politically difficult to pass a 

law, this might be a way to go. 

Thank you. 

[The prepared statement of Mr. Rosenberg follows:]

PREPARED STATEMENT OF MORTON ROSENBERG, ESQ. 

Mr. Chairman and Members of the Subcommittee, 

I am very pleased to be before you again, this time to discuss a statute, The Congressional Review Act (CRA), that I have closely monitored since its enactment ten 

years ago yesterday. Your commencement of oversight of this important piece of legislation is opportune and perhaps propitious. 

As my CRS Report on the decade of experience under the CRA details, we know 

enough now to conclude that it has not worked well to achieve its original objectives: 

to set in place an effective mechanism to keep Congress informed about the rulemaking activities of federal agencies and to allow for expeditious congressional review, and possible nullification of particular rules. The House and Senate sponsors 

of the legislation made clear the fundamental institutional concerns that they were 

addressing by the Act:

As the number and complexity of federal statutory programs has increased 

over the last fifty years, Congress has come to depend more and more upon Executive Branch agencies to fill out the details of the programs it enacts. As complex as some statutory schemes passed by Congress are, the implementing regulations are often more complex by several orders of magnitude. As more and 

more of Congress’ legislative functions have been delegated to federal regulatory 

agencies, many have complained that Congress has effectively abdicated its constitutional role as the national legislature in allowing federal agencies so much 

latitude in implementing and interpreting congressional enactments. 

In many cases, this criticism is well founded. Our constitutional scheme creates a delicate balance between the appropriate roles of the Congress in enacting laws, and the Executive Branch in implementing those laws. This legislation will help to redress the balance, reclaiming for Congress some of its policyVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 00595 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230

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1See, Christopher Yoo, Steven G. Calabresi, and Anthony J. Colangelo, ‘‘The Unitary Executive in the Modern Era, 1945–2004,’’ 90 Iowa L. Rev. 601, 690–729 (2005) (detailing the history 

of presidential control of administrative actions of departments and agencies in the Reagan, 

Bush I, Clinton and Bush II administrations) (Yoo). 2Mark Seidenfeld, ‘‘The Psychology of Accountability and Political Review of Agency Rules,’’

51 Duke L.J. 1059, 1090 (2001). 3 Cynthia R. Farina, ‘‘Undoing The New Deal Through The New Presidentialism,’’ 22 Harv. 

J. of Law and Policy 227 (1998). 4 Elena Kagan, ‘‘Presidential Administration,’’ 114 Harv. L. Rev. 2246 (2001) (Kagan). 

making authority, without at the same time requiring Congress to become a 

super regulatory agency.

The numbers accumulated over the past ten years are telling. Almost 42,000 rules 

were reported to Congress over that period, including 610 major rules, and only one, 

the Labor Department’s ergonomics standard, was disapproved in March 2001. Thirty-seven disapproval resolutions, directed at 28 rules, have been introduced during 

that period, and only three, including the ergonomics rule, passed the Senate. Many 

analysts believe the negation of the ergonomics rule was a singular event not likely 

to soon be repeated. Furthermore not nearly all the rules defined by the statute as 

covered are reported for review. That number is probably at least double those actually submitted for review. Federal appellate courts in that period have negated all 

or parts of 60 rules, a number, while significant in some respects, is comparatively 

small in relation to the number of rules issued in that period. 

It was anticipated that the effective utilization of the new reporting and review 

mechanism would draw the attention of the rulemaking agencies and that its presence would become an important factor in the rule development process. Congress 

was well aware at the time of enactment of the effectiveness of President Reagan’s executive orders centralizing review of agency rulemaking, from initial development 

to final promulgation, in the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) in the face of aggressive challenges of congressional committees. The Clinton Administration, with a somewhat modified executive 

order, but with an aggressive posture of intervention into and direction of rulemaking proceedings, continued a program of central control of administration.1 The 

expectation was that Congress, through the CRA, would again become a major player influencing agency decisionmaking. 

The ineffectiveness of the CRA review mechanism, however, soon became readily 

apparent to observers. The lack of a screening mechanism to identify rules that warranted review and an expedited consideration process in the House that complemented the Senate’s procedures, and numerous interpretative uncertainties of 

key statutory provisions, may have detered its use. By 2001, one commentator 

opined that if the perception of a rulemaking agency is that the possibility of congressional review is remote, ‘‘it will discount the likelihood of congressional intervention because of the uncertainty about where Congress might stand on that rule 

when it is promulgated years down the road,’’ an attitude that is reinforced ‘‘so long 

as [the agency] believes that the president will support its rules.’’ 2

Compounding such a perception that Congress would not likely intervene in rulemaking, particularly after 2001, has been the emergence of what has been called 

by one scholar as the ‘‘New Presidentialism,’’ 3 that has become a profound influence 

in administrative and structural constitutional law. It is a combination of constitutional and pragmatic argumentation that holds that most of the government’s regulatory enterprise represents the exercise of ‘‘executive power’’ which, under Article 

II, can legitimately take place only under the control and direction of the President; 

and the claim that the President is uniquely situated to bring to the expansive 

sprawl of regulatory programs the necessary qualities of ‘‘coordination, technocratic 

efficiency, managerial rationality, and democratic legitimacy’’ (because he alone is 

elected by the entire nation). One of the consequences of this presidentially centered 

theory of governance is that it diminishes the other important actors in our collaborative constitutional enterprise. Were it maintained that the Congress is constitutionally and structurally unfit for running democratic responsiveness, publicregardedness, managerial efficiency and technocratic rationality, this scholar’s sug- gested response is: why bother talking with Congress about what is the best way 

to improve the practice of regulatory government? 

In a widely cited 2001 article,4 the current dean of the Harvard Law School, posits the foregoing notions and suggests that when Congress delegates administrative 

and lawmaking power specifically to department and agency heads, it is at the same 

time making a delegation of those authorities to the President, unless the legislative 

delegation specifically states otherwise. From this flows, she asserts, the President’s 

constitutional prerogative to supervise, direct and control the discretionary actions 


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5Kagan at 2314. 

6 Id.

7Kagan at 2347.

8See Yoo at 722–30. 9Whitman v. American Trucking Assn’s, 531 U.S. 457 (2001). 

of all agency officials. The author states that ‘‘a Republican Congress proved feckless 

in rebuffing Clinton’s novel use of directive power—just as an earlier Democratic 

Congress, no less rhetorically inclined, had proved incapable of thwarting Reagan’s use of a newly strengthened regulatory review process.’’ 5 She explains that ‘‘[t]he 

reasons for this failure are rooted in the nature of Congress and the lawmaking 

process. The partisan and constituency interests of individual members of Congress 

usually prevent them from acting collectively to preserve congressional power—or, what is the same thing, to deny authority to other branches of government.’’ 6 She 

goes on to effectively deride the ability of Congress to restrain a President intent 

on controlling the administration of the laws: 

Presidential control of administration in no way precludes Congress from conducting independent oversight activity. With or without significant presidential 

role, Congress can hold the same hearings, engage in the same harassment, and 

threaten the same sanctions in order to influence administrative action. Congress, of course, always faces disincentives and constraints in its oversight capacity as this Article earlier has noted. Because Congress rarely is held accountable for agency decisions, its interest is in overseeing much administrative action is uncertain; and because Congress’s most potent tools of oversight require 

collective action (and presidential agreement), its capacity to control agency discretion is restricted. But viewed from the simplest perspective, presidential control and legislative control of administration do not present an either/or choice. 

Presidential involvement instead superimposes an added level of political control onto a congressional oversight system that, taken on its own and for the 

reasons just given, has notable holes.7

Dean Kagan’s observations and theories appear to have been almost a blueprint for 

the presidential actions and posture toward Congress of the current Administration.8

The CRA reflects a recognition of the need to enhance the political accountability 

of Congress and the perception of legitimacy and competence of the administrative 

rulemaking process. It also rests on the 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 of an attempted 

revival of the nondelegation doctrine 9 adds impetus for Congress to consider several 

facets and ambiguities of the current mechanism. Absent review, current trends of 

avoidance of notice and comment rulemaking, lack of full reporting of covered rules 

under the CRA, judicial review, and increasing presidential control over the rulemaking process will likely continue. 

There have been a number of proposals for CRA reform introduced in the 109th 

Congress that address more effective utilization of the review mechanism, most importantly a screening mechanism and an expedited consideration procedure in the 

House of Representatives. Two such bills, H.R. 3148, introduced by Rep. Ginny 

Brown-Waite, and H.R. 576, filed by Rep. Robert Ney, both provide for the creation 

of joint committees to screen rules and for expedited House consideration procedures. H.R. 3148 also suggests a modification of the CRA provision that withdraws 

authority from an agency to promulgate future rules in the area in which a disapproval resolution has been passed with the enactment by Congress of a new authorization. That provision has been seen as a key impediment to the review process. Both proposals are expected to receive further consideration.

Mr. CANNON. You’re always provocative, and I really enjoyed 

that testimony. We’ll come back in just a few minutes. But those 

are very good points. 

Mr. Gaziano, you’re recognized for 5 minutes. 

TESTIMONY OF TODD F. GAZIANO, ESQ., SENIOR FELLOW IN 

LEGAL STUDIES, AND DIRECTOR, CENTER FOR LEGAL AND 

JUDICIAL STUDIES, THE HERITAGE FOUNDATION, WASHINGTON, D.C. 

Mr. GAZIANO. Good afternoon, Mr. Chairman. 


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Thank you for inviting me to talk about the operation of a law 

that too often is neglected. 

In my written testimony, I talk about some of the democratic and 

separation of powers theory that supports this legislation. But I’m 

going to try to confine my oral testimony to more practical concerns. 

I want to first turn to an evaluation of the effectiveness of the 

CRA, and I want to talk about the three purposes of the CRA. And 

the first is, as Mr. Mihm has suggested, is to advance public 

record-keeping of agency rulemaking. 

The CRA’s legislative history makes clear that the broad definition of a rule was chosen for several reasons; one of them was to 

help Congress and its supporting agencies better catalogue the corpus of agency rules that affect the public. 

I am somewhat disappointed that compliance has not been complete, and I actually think that the incidence of noncompliance may 

be higher than that which GAO has been able to record. Anecdotal 

evidence and investigation by other Committees of this House has 

suggested as much. 

Nevertheless, the catalogue of nearly 42,000 rules and the public 

database that GAO has set up, together with the required reports, 

is no doubt a very valuable resource for Congress and for scholars 

of the regulatory process. 

The second purpose of the Congressional Review Act is to change 

agency rulemaking behavior. Now it’s true that the CRA has not 

been invoked as often as its sponsors and early commentators expected. But as opposed to the ‘‘glass is half empty’’ conclusion that 

Mort talked about, I think that it is not wise to conclude that it’s 

necessary that it’s had no impact on agency behavior and legislative accountability. 

In fact, there is anecdotal evidence that when Congress invokes 

the CRA, particularly during the rulemaking process, it can have 

an effect. What that evidence suggests to me, Mr. Chairman, is 

that it can be a tool to increase Congress’ leverage when Members 

choose to use it. 

Now some point to the ergonomics rulemaking and say the only 

time that we can enact a law is when a rule is issued, unpopular 

rule is issued at the end of an Administration that isn’t supported 

by the incoming Administration. 

In my written testimony, I explain why I’m not sure that that 

is the case. But even if that is one limitation to the rule, that’s an 

important use of the CRA: to put a stop to such midnight regulations. 

But I do want to address one other limitation that I think has 

been exaggerated, and that is the assumption that Presidents will 

veto any resolution of disapproval for rules that come out of their 

Administrations. Certainly, it is the case that Presidents might 

consider such vetoes. But in my written testimony, I mention three 

reasons why a President might not veto such resolutions of disapproval. 

But even if a President does veto such resolutions of disapproval, 

let me suggest two positive outcomes from the standpoint of democratic theory. The first is that the President would be more directly 

accountable for the regulation—both he and his Administration 


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would not be able to hide behind the ‘‘Congress made me do it. We 

had no discretion, but to issue this particular regulation’’ excuse. 

The second benefit, even of a presidential veto, of course, that 

isn’t immediately overridden is that once Congress expresses its 

will in that way, it usually can get its—have its will enacted in 

some other way, by adding a rider to a different piece of legislation 

or through other means. Creative minds, of course, can certainly 

influence the enforcement of a particular rule and change its operation in the future. 

The third major purpose of the Congressional Review Act is to 

enhance legislative accountability for agency rulemaking. And I 

submit to you that by its action or inaction, Congress is now more 

accountable for agency rules. I think that the CRA was designed 

by its sponsors and does make it harder for both the President and 

Congress to evade their particular share of responsibility. 

To the extent that the CRA does have some limitations, I certainly believe Congress should make further reforms. But Congress 

is, ultimately, responsible. 

In my remaining time, I just want to mention one interpretive 

issue and three possible reforms, just almost by name. The first interpretive issue is that that the courts have somewhat disagreed 

on, and that’s the scope of the limitation on judicial review that’s 

contained in section 805. 

The key question is this. May a court consider whether a rule 

that has never been submitted to a Congress is in effect? And I 

submit that the better interpretation of the statute is that the 

courts can properly pass on that issue. 

But I’m requesting this Committee or suggesting to this Subcommittee, respectfully, that this issue merits special attention in 

the future. No matter what the courts decide about this issue, I 

suggest that this Subcommittee should ensure that there’s at least 

limited judicial review of that triggering mechanism in the future, 

even if it requires future legislative amendment. 

The other matters that I would commend to this Subcommittee’s 

further consideration is I do think that there is a desperate need 

for an OIRA-like organization in Congress. I feel somewhat presumptuous—it would be somewhat presumptuous of me to suggest 

exactly what that is, but I also think that it makes no sense from 

a separation of powers standpoint for you to be so seriously 

outmanned in the regulatory review. So I think the Committees of 

jurisdiction also need to significantly increase their staff. 

The two other, more dramatic proposals that I would suggest are 

that Congress consider requiring congressional approval of major 

rules. Not make them subject to disapproval, but actually require 

affirmative congressional approval. 

And the final reform that I certainly think is justified is to prevent the proliferation of crimes from being defined in regulations. 

I think that if it is worthy to criminalize, Congress ought to define 

the contours of crimes. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Gaziano follows:]


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PREPARED STATEMENT OF TODD F. GAZIANO


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Mr. CANNON. Thank you. 

Mr. Sullivan, you’re recognized for 5 minutes. 

TESTIMONY OF JOHN V. SULLIVAN, ESQ., PARLIAMENTARIAN, 

OFFICE OF THE PARLIAMENTARIAN, U.S. HOUSE OF REPRESENTATIVES, WASHINGTON, D.C. 

Mr. SULLIVAN. Thank you, Mr. Chairman. 

May it please the Committee, thank you for the welcome and for 

the kind words about the Office of the Parliamentarian, most especially for the gracious acknowledgment of Lefty Sullivan, who I’m 

told in his Major League career lost but one game. 

My predecessor, Charlie Johnson, was with you in 1997, and he 

assured me that this was a very pleasant experience. So I’m 

pleased to be here. 

I am glad for the opportunity to help illuminate maybe one part 

of the factual predicate on which the Committee might decide 

whether to adjust the CRA or whether it’s currently optimized to 

meet its desired ends. 

As I indicate graphically in my written testimony, the CRA has 

engendered a tripling of the executive communications traffic to the 

Speaker. This flow of paper poses a significant increment of workload in the institution of the House. But, of course, this paperwork, 

mass though it may be, does serve a purpose. 

When I read the testimony of my learned colleagues about a desirable deterrent effect of the act, it rings true to me. But I’m also 

reminded of the last 10 or 15 years of the Cold War, when we saw 

the key to our own nuclear deterrent shift dramatically away from 

megatonnage and in favor of accuracy. 

I think that the Committee may want to assess whether a lesser 

volume of communications traffic might better optimize the oversight of the regulatory Committees of the rulemaking process, 

dwelling greater attention on a more selective universe of rulemaking actions. 

I note that the act already differentiates among rulemaking actions on the basis of certain hallmarks of salience, and it might be 

time to consider whether additional discriminators might be sensible to constrict the flow and dwell stronger focus on the remaining stream. 

Certainly, the Office of the Parliamentarian would be pleased to 

work with the Committee and with the staff on trying to identify 

ways to avoid any duplication of effort or any undue weight of 

paper. 

I won’t reiterate the rest of the written testimony, brief though 

it may be. I’m pleased to be here and happy to engage any questions you might have. 

[The prepared statement of Mr. Sullivan follows:]


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PREPARED STATEMENT OF THE HONORABLE JOHN V. SULLIVAN


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Mr. CANNON. Thank you, Mr. Sullivan. 

If I might, Mr. Sullivan, I have just a couple of questions. Then 

we have a series of questions that we’ll probably send you all that 

you can use to help us understand a little more about what we’re 

doing here. 

But if I might, Mr. Sullivan, you talked about Committees of jurisdiction, meaning I suppose authorizing Committees. And so, 

when you’re talking about this amazing—and I just looked at your 

chart—this tripling of communications. And of course, we’re organized by Committees now and have some more and less vague 

Committee jurisdictions. We have Government Reform, for instance, which would have some role here. 

But if you—so when talking about the rules of jurisdiction and 

whether or not it makes sense, I think Mr. Rosenberg was talking 

about a Committee or Committees, would it make sense to have a 

Committee that is fairly heavily staffed deal with these issues of 

CRA? And that way, you don’t put limiters or, I forget the term you 

used for it, but some way to describe the importance of this, but 

rather you have a Committee that is in place that reviews all of 

it, and we go through a—maybe a Committee process? 

So instead of all the Committees of jurisdiction who would have 

a person assigned, does it make sense to have a Committee, for instance, obviously, I think this Committee, which oversees these activities generally, would have staff to review and deal with the paperwork and then focus, as is appropriate, politically on what some 

of these regulations are and, therefore, make the determination of 

importance based upon a single Committee overseeing the complex 

process? 

Do you have any thoughts on that? 

Mr. SULLIVAN. That sounds worthy of your consideration, Mr. 

Chairman. 

As I understand it right now, until such time as the Speaker refers the communication to the Committee of jurisdiction over the 

enabling statute for the rulemaking, the only filtering that occurs 

really is by the words of the statute. The discriminators that exist 

under the status quo are just textually recited in the statute. 

And as I understand Mr. Rosenberg’s idea, it would be to achieve 

a higher level of granularity in that filtering process by having live 

experts applying their notions of discrimination, their own discriminatory sense to rulemakings as they come in. 

And that certainly is one way to refine the flow to the regulatory 

Committees so that when they do hit the Committee of jurisdiction 

over the Clean Water Act, the counsel who specialize in that area 

will be able to bring the full force of their more concentrated expertise on it. 

Any kind of filtering process I think is worthy of consideration. 

And as I said, right now, the filter is just the text of the statute, 

it might be worth considering putting an organ there. 

Mr. CANNON. What I’m wondering is—I’ve spent a lot of my life 

doing administrative procedure, rulemaking stuff. I worked in the 

Reagan administration on coal mining and really created a thirdtier of coal mine reclamation regulations. It was an amazing process early in my career. 


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But I’m wondering if—two things, Mr. Sullivan. First of all, what 

would the rules have to—how would they have to be changed for 

the House to do what I’m about to suggest? And then how would 

it actually, as a practical matter, work? 

As I understand, you have communications now coming to the 

Speaker from the Administration, and those have increased significantly. Would it not be fairly simple, and I’m wondering about the 

effectiveness of the process to take those communications from the 

Speaker and then send them to a Committee, and that Committee 

would tend to look at all regulations? And to the degree that you 

needed the expertise of an authorizing Committee, there could be 

some sort of joint procedure. 

Now that has to be done in a way that there is actually an appropriate use of discretion. But at some point, you have to say this is 

not worth something, and somebody has to—a Chairman has to 

say, ‘‘This is not worth it, this is worth it,’’ and then follow up on 

that. 

It would seem to me that that Committee would also require a 

lot of expertise over time, and we have a rule currently that term 

limits chairmen. So I’m giving you sort of an amorphous question. 

But just wondering, given the rules today, could we take a pathway where you take all of these communications. They go through 

a well staffed process, but a political process that then works its 

will with the majority and minority and also works with other 

Committees, authorizing Committees that have the specific or special area expertise and possibly also with the appropriating Committees. 

What changes would you see that would have to be made to do 

that? And does it make sense to even pursue that idea? 

Mr. SULLIVAN. I think that that sort of thing could be pursued 

without touching the statute, although it would be in the jurisdiction of the Committee on Rules. The House could ordain a 21st 

standing Committee and confer on it, call it the Committee on Filtering Rulemakings. 

Mr. CANNON. Let me just say that it would seem to me that making a 21st Committee, maybe it would justify it. But what you 

would have in that Committee, it would not—let me just ask you 

this. 

If you took a sitting Committee, either Government Reform 

would be possibly appropriate or Judiciary, where I think it actually is appropriate, and expanded one of the Subcommittees, and 

maybe you got rid of term limits or something like that. So you 

could have somebody who actually liked doing it, would do it over 

a longer period of time and add some continuity. It would seem to 

me that that makes some sense as opposed to creating a new Committee. So I realize we’re now dealing with some pretty big things 

here. 

Mr. SULLIVAN. Conceptually, it’s exactly the same thing. The 

House could just add a new element to the subject matter jurisdiction of the Judiciary Committee or of the Government Reform Committee that said ‘‘review of executive rulemaking actions’’ and tell 

that Committee to have one of its Subcommittees or a new Subcommittee become expert at filtering and at ushering recommendations to the Committees of regulatory jurisdiction. 


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Mr. CANNON. And would the House need a rule change—part of 

that rule change would be and so communications to the Speaker 

would then be delegated to that Committee? 

Mr. SULLIVAN. If Rule X said that that was the Committee that 

had jurisdiction over executive tenders of rulemaking actions under 

the CRA, then the Speaker would refer them to that new jurisdiction instead of his current practice of referring them to the sundry 

Committees who have enacted the enabling statutes for these rulemaking powers. 

Mr. CANNON. Do you have a recommendation in mind? Your 

job—I don’t mean to put you in an uncomfortable position, but your 

job is to figure out how the rules work, and we’re now suggesting 

a new context rule. 

Would you put jurisdiction in all of the authorizing Committees 

to review regulations, or would you see it better working through 

either a new Committee or as a new Subcommittee of one of the 

existing Committees? 

Mr. SULLIVAN. I think that’s too substantive a question for a 

proceduralist like me. 

Mr. CANNON. But procedurally, we don’t have a problem doing 

that if we decide to do something like that? 

Mr. SULLIVAN. No. And the basic philosophy of the Committee 

system is to develop and apply expertise in compartments, and 

maybe this is a compartment in which the House would like to develop and apply expertise on a special basis. 

Mr. CANNON. And what we have now is just untenable, as your 

charts show. We have this massive communication with no—we 

haven’t changed how we operate in the context of this massive communication, and then we get back to what Mr. Rosenberg called 

our dashed hopes or the dashed hopes of people who wanted to see 

a little more of this happening. So there is some high inconsistency 

here. 

Let me just say, anybody else want to comment on how we 

should do this? That is, a new Committee or using existing Committees and having a new Subcommittee or as opposed to using the 

current—the authorizing Committees? 

Sorry, Morton? 

Mr. ROSENBERG. I could comment on that, just to be provocative. 

What we have here is a congressional process. You know, in 

order to do what the framers of this legislation wanted to do, they 

had two houses involved. And what they—what wasn’t thought 

through or didn’t realize the problems at the time is that in order 

to—there are so many authorizing Committees, jurisdictional Committees out there, as you’re pointing out, what might be a solution 

is not simply a special Committee, but a joint Committee, which 

has only the authority to recommend with respect to who will 

screen, has staff enough to make some analyses of rules that come 

over, pick out the particular ones that appear to be appropriate for 

congressional review. 

There would be House Members and Senate Members. And the 

recommendations would be sent to the jurisdictional Committees of 

each House with a recommendation, if it’s such, that they exercise 

their authority and issue a—you know, file a resolution of disapproval. 


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It has a lot of benefits, it seems to me, because, one, it provides 

the screening mechanism necessary, it provides some necesary expertise, and it also may take care of the political problem of taking 

away jurisdiction from current jurisdictional Committees. 

What happens is those Committees have recommendations, and 

those recommendations are up to the jurisdictional Committees to 

go to the expedited procedures, you know, to formulate that. 

I think that while your Committee would be a good one with regard to looking at this, it would probably be very difficult to get 

everybody to agree, even a House resolution, you know, of vesting 

you with all that authority. It’s a problem that we see with the 

House Homeland Security Committee. 

Mr. CANNON. I’m hoping most people think this is boring and not 

worthy of their attention. [Laughter.] 

Mr. ROSENBERG. Just one idea. I’m for a separate Committee, 

and I’m much more for a joint Committee that helps both houses 

do the job. 

Mr. CANNON. Thank you. 

Mr. GAZIANO. In my written testimony, I said that I’m reluctant 

to say too much about this because the perfect sometimes is the 

enemy of the good in reform. And I think that the imperative is 

that you do something, that you create some sort of structure and 

increase staff to help with this. 

But I—but I do think I know why, and here I may be stepping 

out of my—you know, into my personal memory versus the public 

record—why the parliamentarian was given the task of making referrals because: that was who everyone could agree with. That’s the 

parliamentarian’s traditional job. 

I think there was an understanding that it would significantly 

increase their office workload. But let me suggest a couple of possibilities. One certainly is that Congress recognize that the parliamentarian’s office at least needs sufficient increased manpower and 

staff or an adjunct or whatever to help with those referrals. 

There is a concern by the authorizers that any other Committee 

but their Committee wouldn’t have the expertise to know when the 

rulemaking is a good or bad rulemaking. So I think that you want 

to avoid the perfect being the enemy of the good. 

Another possibility is to create more expertise somewhere else in 

Congress, whether it then advises the parliamentarian’s office or 

the individual Committees. But I think part of what the permanent 

structure of that Committee would be is expertise in cost-benefit 

analysis and some cost-cutting expertise about the rulemaking 

process. 

So there would be some permanent staff like the OIRA staff. And 

beyond that, you know, I think that there are these other issues 

and concerns that might come up. I would love for this Committee 

or any Committee to retain the jurisdiction, but I would fear that 

your ‘‘below the radar screen’’ approach might not go unnoticed as 

the legislation moved forward. 

Mr. CANNON. And here I thought you were a person of great historical perspective. Given the attention these matters have had, I’m 

fairly sure the radar screen is not so sensitive. 


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I’d like to apologize for Mr. Watt, who—we had late votes and 

then an emergency meeting, and so he was not able to get down 

here and join us. 

And I have just one other question sort of following up on this 

question and going back, I think, really to Mr. Mihm and Mr. 

Rosenberg talking about dashed hopes or talking about the number 

of reviews and these sorts of things. 

What if you changed the premise of CRA away from a disapproval and to a requirement that Congress affirmatively act. 

Now that changes the nature of this discussion about what Committee it would go through. What it would mean, as a practical 

matter, is that we pass a lot of legislation all at a time, but it 

would—it would meet many of the criticisms we’ve had of the CRA. 

Assume for a moment, it’s politically possible. Does that make 

sense? And I think that most of you all would have some comment 

on that. 

Do you want to start? Go ahead, Mort. Sure. 

Mr. ROSENBERG. Seven years ago I suggested that in an article 

in the Administrative Law Review, That the most effective way of 

controlling administrative regulations is through a process whereby 

there has to be affirmative approval of regulations. 

This creates some problems. If you have all rules that are subject 

to it, you have an enormous volume of rules that are going to come 

across. But I think that problem could be solved, and I addressed 

that in the article that I wrote in 1999. I believe that a screening 

committee that would deal with this could use a deeming process 

and take care of about 99.9 percent of the rules. 

That is, deeming that rules that are sent over passed on a particular day, a CRA Wednesday that takes place each month, and 

you wouldn’t have more than a 30- or a 60-day delay for 99.9 percent of the rules. And those that are pinpointed as needing more 

reviewwould then go through a more rigorous approval process. 

I think it could be created. I think it’s constitutional. And assuming it’s politically possible, I think that is the most viable way to 

go and the most effective way from Congress’ institutional point of 

view. 

Mr. CANNON. Would you get us a copy of the article you referred 

to for the record 

Mr. ROSENBERG. Certainly. 

Mr. CANNON. I’d appreciate that. 

Chris? 

Mr. MIHM. Mr. Chairman, we haven’t looked at this issue directly, but I’d offer just two kind of broad observations on this. 

One is that in response to your earlier question and some of Mr. 

Sullivan’s charts, we talked about the enormous increase in workload and burden on the Congress that was required to review these 

things after the fact. It probably, that would be augmented several 

fold perhaps if Congress wanted to review them before implementation, that is, to pass on them. 

Again, it’s Congress’ judgment as to whether or not it wants to 

go down that road. But I would just observe that it would probably 

entail quite a bit of additional work on behalf of the Congress, even 

taking, I think, context, some point that you could just focus on the 

major rules which would be the 610 or so. 


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The second thing that I would just observe, and this gets back 

to the broader agenda of this Subcommittee and in particular the 

hearing that you held last November, is that the Congress may 

want to spend more time looking more at the back end of the regulatory process. 

That is, you know, one of the things that’s really flown below the 

radar screen is after regulations are put in place, we almost never 

go back and say, ‘‘Gee, did we get what was promised as a result 

of this?’’ You know, we were promised either savings or better 

health or increased, you know, safety or whatever the case may be. 

And in many cases, that probably plays out, but I’m willing to 

bet in some cases it does not. And we never go back and look at 

that. And so, a kind of a more retrospective analysis or focus on 

retrospective analysis we think would be very beneficial. 

Mr. CANNON. Does that mean like a 3-year sunset? So suppose 

for a moment you had a joint Committee or each house had a Committee, and we had an expedited process. So something worked 

here. Would it make sense then to add a sunset to regulations so 

they came up automatically for political/congressional review? 

Mr. MIHM. I’m not sure that I can go so far—I mean, we haven’t 

done the work to justify whether or not there would be sunset. But 

certainly, it would be beneficial to require at least a periodic re-examination and perhaps in a report to the Congress. And that’s 

something that we could be helpful in, in GAO, and we’ve tried to 

be in the past. To look at this, are we actually getting from a particular rule that was promised when we promulgated it, especially 

some of these major rules? 

Mr. GAZIANO. Mr. Chairman, 10 years ago almost, last month, 

the House was set to vote on H.R. 994, the Sunset and Review Act, 

which, by the way, is maybe something you want to look at again, 

which would have sunsetted regulations in the congressional—in 

the CFR by part. So that’s one option. 

As far as the major rule, I think that what Mort has suggested 

is one approach. I think that this Subcommittee held a hearing 

about 9 years ago where the alternative to require major rules to 

receive affirmative authorization was discussed. I know that the 

sponsors of the CRA 10 years ago anticipated that, and that’s why 

they created in the statute that distinction between major and 

nonmajor rules. 

That did not exist in the statute at the time. It was only a function of executive order, and they codified that distinction so that 

some future Congress could make that. That would be roughly 61 

rules a year divided between all the relevant authorizing Committees. 

And it was understood by those who hoped that that would some 

day be considered by Congress that, of course, it wouldn’t—it 

doesn’t take as much legislative record to decide whether a rule 

should be enacted into law or not. That’s already received the agency’s attention. So it would not—let’s say if a given Committee had 

five or so a year, it would not take the same level of attention as 

passing five other pieces of legislation. 

But the democratic theory was major rules have bigger impact on 

the American economy than most laws Congress passes, at least if 


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it’s in a major rule. Maybe you could define it in some other way. 

But at least if it’s a major rule, Congress ought to enact it into law. 

Mr. ROSENBERG. There’s a problem here that can be overcome 

perhaps. Right now, under the CRA, a major rule is defined as 

major by OIRA, the OIRA Administrator. Who is going to do this 

differentiating between major and nonmajor rules? Congress can’t 

do it on a piecemeal basis. That would probably be Chadha and be 

a problem. 

That’s why I struggled with that in writing the article about how 

you could do this. I’ve often thought of a tiered kind of structure 

where, but who would designate what it is? Could you write a definition that would cover all the rules that you want to come over? 

There are some rules that nobody’s going to think of as major 

until they explode upon you or they’re looked at. So that’s a problem that has to be addressed from a constitutional point of view, 

as well as a pragmatic point. 

Mr. CANNON. Which is why you focus on a joint Committee. Personally, I’m not sure that works as well as two Committees that 

would have responsibility. 

Mr. ROSENBERG. Well, you don’t have a joint Committee if you 

have——

Mr. CANNON. But you have a single——

Mr. ROSENBERG Joint Resolution of approval, then you don’t need 

a joint Committee. But you still have——

Mr. CANNON. You have the underlying problem? 

Mr. ROSENBERG. Yes. 

Mr. CANNON. Which means you don’t—it doesn’t work through 

all the—the authorizing Committees because there’s no way to 

have coherence. 

Mr. ROSENBERG. But there can be a process whereby there can 

be a screening of all rules that come over as proposed rules. Then 

there can be a deeming process which gets rid of most of them and 

puts them into law after 30 or 60 days. 

Mr. GAZIANO. I don’t know that some people would like the effect 

of 42,000 laws, and courts having to interpret them. But there 

are—but Mort is right about the problem. There are two other possible solutions. Right now, there is no—Congress, in its wisdom for 

various reasons of expediency, decided not to make the OIRA determination subject to judicial review. 

The two alternatives, if you were going to enact this, I think, 

very important reform, would be to make the OIRA determination 

subject to judicial review. So there is some risk, and that does 

avoid the Chadha problem. And that’s why all regulations still 

have to come to Congress so that circumvention can be dealt with. 

So that—and then you still need, I think, these other Committees 

because major rules are the minimum that Congress should be enacting into law. But then you make the nonmajor ones subject to—

still subject to disapproval, but more effectively. 

Mr. CANNON. Let me ask, John, suppose you had a single Committee of jurisdiction without the subject matter expertise. Is it 

possible to have a rule that allows or requires the joint Committee 

or the single Committee to work with other Committees? You 

know, we do that currently with the concurrent jurisdiction in 

Committees on some matters. 


033006.ACB
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50

Is there a way to do that with a Committee that handles all of 

them and then somehow coordinates with Committees of expertise? 

Mr. SULLIVAN. Yes, Mr. Chairman. 

For example, you could contemplate that this panel would report 

not to the House, but to its sister Committees. It would make recommendations to the Committees that enacted the enabling statutes in the first instance. 

Mr. CANNON. So serial jurisdiction? 

Mr. SULLIVAN. Yes, sir. 

Mr. CANNON. Interesting. All right. 

Can I ask one other question? This is sort of technical, but if we 

had reports submitted electronically, is it possible to speed up this 

process, from your perspective as the parliamentarian, so that you 

take and delegate electronically some of this material? Would that 

speed up the referral process out of your office? 

Mr. SULLIVAN. It might speed up the referral process. It certainly 

would make more efficient the movement of the paper and the 

tracking of submittal dates and so forth, the things that the clerk’s 

office has to do with the flow. 

The parliamentarian would still have to examine the substance 

of the rulemakings to discern the Committee jurisdictions in them, 

but I think it would materially assist the Legislative Resource Center and the others who have to move this paper. 

Mr. CANNON. So do we need to do something to establish a requirement by the Administration to in some consistent manner 

submit these things electronically? 

Mr. SULLIVAN. I assume that that might require that you visit 

the statutory text. I’m personally leery about going virtual on anything. Committees frequently want to teleconference instead of 

meet together face to face, or poll their Members instead of having 

them in the same room and voting, we constantly try to impress 

on them notion of Jeffersonian collegiality and the importance of 

Members being together in the flesh. So crossing the threshold of 

a virtual submission I would want to be very cautious about that. 

But in terms of batch processing, if the comptroller bundled communications and had a covering electronic submission that could 

manage the submittal dates and the tracking and that sort of 

thing, I think that would be very helpful. 

Mr. CANNON. Great. Thank you. 

Obviously, this is a panel of experts who’ve been here before, and 

you all have given very thoughtful, insightful testimony on this 

issue. We appreciate your involvement in the broader APA review. 

And with that, we will stand adjourned. 

[Whereupon, at 3:43 p.m., the Subcommittee was adjourned.] 


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Æ


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U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001

24–282 PDF 2006

ADMINISTRATIVE LAW, PROCESS AND

PROCEDURE PROJECT

HEARING BEFORE THE

SUBCOMMITTEE ON 

COMMERCIAL AND ADMINISTRATIVE LAW OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

NOVEMBER 1, 2005

Serial No. 109–71

Printed for the use of the Committee on the Judiciary

(

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


110105.AAB
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(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL ISSA, California 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

CHRIS VAN HOLLEN, Maryland 

DEBBIE WASSERMAN SCHULTZ, Florida

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 

TRENT FRANKS, Arizona 

STEVE CHABOT, Ohio 

MARK GREEN, Wisconsin 

RANDY J. FORBES, Virginia 

LOUIE GOHMERT, Texas 

MELVIN L. WATT, North Carolina 

WILLIAM D. DELAHUNT, Massachusetts 

CHRIS VAN HOLLEN, Maryland 

JERROLD NADLER, New York 

DEBBIE WASSERMAN SCHULTZ, Florida

RAYMOND V. SMIETANKA, Chief Counsel 

SUSAN A. JENSEN, Counsel 

MIKE LENN, Full Committee Counsel 

BRENDA HANKINS, Counsel 

STEPHANIE MOORE, Minority Counsel 


110105.AAC
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(III)

C O N T E N T S 

NOVEMBER 1, 2005

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, Esquire, Specialist in American Public Law, American 

Law Division of the Congressional Research Service, Library of Congress 

Oral Testimony ..................................................................................................... 7

Prepared Statement ............................................................................................. 10

Mr. J. Christopher Mihm, Managing Director of Strategic Issues, United 

States Government Accountability Office 

Oral Testimony ..................................................................................................... 31

Prepared Statement ............................................................................................. 34

Professor Jeffrey S. Lubbers, Fellow in Law and Government Program, Washington College of Law, American University 

Oral Testimony ..................................................................................................... 59

Prepared Statement ............................................................................................. 62

Professor Jody Freeman, Harvard Law School 

Oral Testimony ..................................................................................................... 76

Prepared Statement ............................................................................................. 80

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 ........................................................................ 3

MATERIAL SUBMITTED FOR THE HEARING RECORD

Responses to additional questions from Morton Rosenberg, Esquire, Specialist 

in American Public Law, American Law Division of the Congressional Research Service, Library of Congress ................................................................... 94

Responses to additional questions from J. Christopher Mihm, Managing Director of Strategic Issues, United States Government Accountability Office . 112

Responses to additional questions from Professor Jeffrey S. Lubbers, Fellow 

in Law and Government Program, Washington College of Law, American 

University ............................................................................................................. 118

Responses to additional questions from Jody Freeman, Harvard Law School ... 125


110105.AAD
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(1)

ADMINISTRATIVE LAW, PROCESS AND 

PROCEDURE PROJECT 

TUESDAY, NOVEMBER 1, 2005

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON COMMERCIAL

AND ADMINISTRATIVE LAW, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met, pursuant to notice, at 10 a.m., in Room 

2141, Rayburn House Office Building, the Honorable Chris Cannon 

(Chair of the Subcommittee) presiding. 

Mr. CANNON. If you would all like to take your seats. Thank you 

all for coming this morning. 

I don’t have a gavel. We are now in order. Don’t worry about it. 

It is not life or death here. 

The current Federal regulatory process faces many significant 

challenges. Earlier this year the head of OMB’s Office of Information and Regulatory Affairs testified that ‘‘no one has ever tabulated the sheer number of Federal regulations that have been 

adopted since passage of the Administrative Procedure Act,’’ which 

I might add parenthetically was in 1946. He further acknowledged, 

‘‘Sad as it is to say, most of these existing Federal rules have never 

been evaluated to determine whether they have worked as intended and what their actual benefits and costs have been.’’ A rather depressing statement. 

In September 2005, the SBA’s Office of Advocacy reported that 

the annual cost to comply with Federal regulations in the United 

States in 2004 exceeded $1.1 trillion, about 10 percent of our whole 

economy, which means that if every household received a bill for 

its equal share, each would have owed $10,172, an amount that exceeds what the average American household spent on health care 

in 2004, which is just under $9,000. 

Other problematic trends include the absence of transparency in 

certain stages of the rulemaking process, the increasing incidence 

of agencies publishing final rules without having them first promulgated on a proposal basis, the stultification of certain aspects 

of the rulemaking process, and the need for more consistent enforcement by agencies. 

Given the fact that the EPA was enacted nearly 60 years ago, a 

fundamental question that arises is whether the act is still able to 

facilitate effective rulemaking in the 21st century. 

In an attempt to answer that question, House Judiciary Chairman Sensenbrenner earlier this year requested that our SubVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 00677 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230

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2

committee spearhead the Administrative Law, Process and Procedure Project. 

The object of the project is to conduct a nonpartisan, academically credible analysis of Federal rulemaking that will focus on 

process, not policy concerns. Some of the areas that will be studied 

include the role of public participation in the rulemaking process, 

judicial review of rulemaking, and the utility of regulatory analysis 

and the accountability requirements. 

For the purpose of soliciting scholarly papers and promoting a robust dialogue, the Subcommittee intends to facilitate colloquia at 

various academic institutions and organizations that analyze Federal rulemaking. 

In addition, the Congressional Research Service has been asked 

to make some of its leading administrative law experts available to 

guide the project, one of whom is testifying today. Under the auspices of CRS, several independent empirical studies of various 

issues conducted by some of the most respected members of academia are already underway as part of the project, and we will 

hear about one of those ongoing studies as part of today’s hearing. 

The project will also benefit from the wealth of expertise that the 

Government Accountability Office provides. To date, GAO has produced more than 60 reports on various aspects of the Federal regulatory process, and one of our witnesses will explain the work of 

GAO in this critical area. 

The project will culminate with the preparation of a detailed report with recommendations for legislative proposals and suggested 

areas for further research and analysis to be considered by the Administrative Conference of the United States. 

As you may recall legislation reauthorizing ACUS was signed 

into law last fall. ACUS was a nonpartisan, private-public think 

tank that proposed many valuable recommendations which improved administrative aspects of regulatory law and practice. Over 

its 28-year existence ACUS has served as an independent agency 

charged with studying the efficiency, adequacy and fairness of the 

administrative procedure used by Federal agencies. Most of its approximately 200 recommendations were implemented. They in turn 

helped save taxpayers millions of dollars. 

In a rare expression of unanimity, the Supreme Court Justices 

Scalia and Breyer jointly testified before our Subcommittee last 

year in support of ACUS. In complete unison they extolled the Conference’s virtues. Justice Breyer in particular cited the value of the 

Conference’s recommendations, noting that they resulted in ‘‘huge’’

savings to the public. Likewise Judge Scalia stated the Conference 

was ‘‘an enormous bargain.’’ Accordingly, it is critical that ACUS 

be appropriated its funding if not before, at least by the time the 

project report is completed. 

This is truly an exciting undertaking. I look forward—can you 

imagine an exciting undertaking in administrative procedures? It 

actually really is, and I look forward to the testimony from our witnesses as we get this project going. 

I now turn to my colleague, Mr. Watt, the distinguished Ranking 

Member of my Subcommittee, and ask him if he has any opening 

remarks. 

[The prepared statement of Mr. Cannon follows:]


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3

PREPARED STATEMENT OF THE HONORABLE CHRIS CANNON, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF UTAH, AND CHAIRMAN, SUBCOMMITTEE ON COM- MERCIAL AND ADMINISTRATIVE LAW

The current federal regulatory process faces many significant challenges. Earlier 

this year, the head of OMB’s Office of Information and Regulatory Affairs testified 

that ‘‘no one has ever tabulated the sheer number of federal regulations that have 

been adopted since passage of the Administrative Procedure Act,’’ which I might add 

parenthetically was in 1946. He further acknowledged, ‘‘Sad as it is to say, most 

of these existing federal rules have never been evaluated to determine whether they 

have worked as intended and what their actual benefits and costs have been.’’ A rather depressing statement. 

In September 2005, the SBA’s Office of Advocacy reported that the annual cost to comply with federal regulations in the United States in 2004 exceeded $1.1 trillion, which means that if every household received a bill for its equal share, each 

would have owed $10,172, an amount that exceeds what the average American 

household spent on health care in 2004, which is just under $9,000. 

Other problematic trends include the absence of transparency at certain stages of 

the rulemaking process, the increasing incidence of agencies publishing final rules 

without having them first promulgated on a proposed basis, the stultification of certain aspects of the rulemaking process, and the need for more consistent enforcement by agencies. 

Given the fact that the APA was enacted nearly 60 years ago, a fundamental 

question that arises is whether the Act is still able to facilitate effective rulemaking 

in the 21st Century? 

To help us answer that question, House Judiciary Committee Chairman Sensenbrenner earlier this year requested our Subcommittee to spearhead the Administrative Law, Process and Procedure Project. The objective of the Project is to conduct 

a nonpartisan, academically credible analysis of federal rulemaking that will focus 

on process, not policy concerns. 

Some of the areas that will be studied include the role of public participation in 

the rulemaking process, judicial review of rulemaking, and the utility of regulatory 

analysis and accountability requirements. 

For the purpose of soliciting scholarly papers and promoting a robust dialogue, 

the Subcommittee intends to facilitate colloquia at various academic institutions and 

organizations that analyze federal rulemaking. In addition, the Congressional Research Service has been asked to make some of its leading administrative law experts available to guide the Project, one of whom is testifying today. Under the auspices of CRS, several independent empirical studies of various issues conducted by 

some of the most respected members of academia are already underway as part of 

the Project, and we’ll hear about one of those ongoing studies as part of today’s 

hearing. The Project will also benefit from the wealth of expertise that the Government Accountability Office provides. To date, GAO has produced more than 60 reports on various aspects of the federal regulatory process. And, one of our witnesses 

will explain the work of the GAO in this critical area. 

The Project will culminate with the preparation of a detailed report with recommendations for legislative proposals and suggested areas for further research and 

analysis to be considered by the Administrative Conference of the United States. As 

you may recall, legislation reauthorizing ACUS was signed into law last fall. ACUS 

was a nonpartisan ‘‘private-public think tank’’ that proposed many valuable recommendations which improved administrative aspects of regulatory law and practice. Over its 28-year existence, ACUS served as an independent agency charged 

with studying the efficiency, adequacy, and fairness of the administrative procedure 

used by federal agencies. Most of its approximately 200 recommendations were implemented, and they, in turn, helped save taxpayers many millions of dollars. 

In a rare expression of unanimity, Supreme Court Justices Scalia and Breyer 

jointly testified before our Subcommittee last year in support of ACUS. In complete 

unison, they extolled the Conference’s virtues. Justice Breyer, in particular, cited 

the value of the Conference’s recommendations, noting that they resulted in ‘‘huge’’ savings to the public. Likewise, Justice Scalia stated that the Conference was ‘‘an 

enormous bargain.’’ Accordingly, it is critical that ACUS be appropriated its funding, 

if not before, at least by the time the Project report is completed. 

This is a truly exciting undertaking and I look forward to the testimony from our witnesses.

Mr. WATT. Thank you, Mr. Chairman, and thank you for convening this hearing, and thank Chairman Sensenbrenner and 

Ranking Member Conyers for enlisting the able assistance of the 


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4

Congressional Research Service to provide guidance, supervision 

and a structural framework for this important, massive, bipartisan 

undertaking. 

As I indicated last year in our hearing in which Justices Scalia 

and Breyer offered their insights on the role that the defunct Administrative Conference of the United States had played prior to its 

demise, I found it somewhat ironic that the agency that had actively worked to make Government smaller, more efficient and 

more accountable was itself a victim of the end of the era of big 

Government mantra of the 90’s by reauthorizing the Administrative Conference last term. Congress has now taken the first steps 

toward restoring an invaluable mechanism created to improve the 

content, implementation and processes of Federal administrative 

law. 

Now, if we could get funding appropriated to fund the Administrative Conference, this project will serve as a useful device to sort 

through and prioritize those systematic issues in the administrative law arena that cry out for examination and possible reform. 

There is no greater example, as noted by several of our witnesses 

in their written testimony, of the need for review of the effectiveness of administrative law and procedures before us today than the 

bureaucratic morass that seemingly and tragically undermined efforts to save and provide prompt relief to the countless families and 

individuals caught in the path of Hurricane Katrina. 

While there will be probing investigations into what went wrong 

in the aftermath of Katrina, bureaucratic flexibility in the face of 

national disasters or emergencies together with the interoperability 

and coordination of efforts at all levels of Government are vitally 

important to be considered in this examination of the current state 

of administrative process and procedure. 

In addition to disaster-related areas of inquiry, there are other 

areas that are deserving of the in-depth review the project seeks 

to provide. I believe that overall review not only of our administrative agencies themselves but also of the judicial, presidential and 

congressional roles in the administrative process, will provide us 

with a thorough understanding of how each branch of Government 

contributes to furthering or impeding the goals of that process. 

As the project progresses to evaluate e-Government and e-rulemaking, I believe the questions of security, privacy and access must 

be considered. While technological advances have broadened the 

possibilities of delivering and managing some governmental services quicker with greater efficiency, these advances have also 

broadened the potential for abuse, misuse, and exclusion. 

For example, transparency may invite security concerns, assembly of vast amounts of personal data may invite privacy concerns, 

and the mere use of advanced technology to administer governmental programs and policies might invite access concerns for 

small, disadvantaged or minority stakeholders who have yet to 

cross the digital divide. 

There are many other issues, privatization, attorneys fees, judicial comity and the role of executive orders to name a few, that are 

important aspects of our system of administrative law and procedure. 


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5

I look forward to continuing to work with you, Mr. Chairman, on 

this comprehensive and balanced bipartisan examination of the 

state of our administrative law system, and I thank the witnesses 

for the insights they will provide to us today and yield back the 

balance of my time. 

Mr. CANNON. Thank you, Mr. Watt. I have often said that the 

most interesting questions of our day are not partisan questions. 

This is certainly, I believe, one of them. When we consider a tenth 

of the economy is involved in the Federal regulatory process it is 

amazing. 

Without objection, all Members may place their statements in 

the record at this point. Without objection, so ordered. 

Without objection, the Chair will be authorized to declare recesses at any point in this hearing. Hearing none, so ordered. 

I ask unanimous consent that Members have 5 legislative days 

to submit written statements for inclusions in today’s hearing 

record. Without objection, so ordered. 

I am now pleased and honored to introduce our witnesses for today’s hearing. Our first witness is Mort Rosenberg, Specialist in 

American Public Law in the American Law Division of the Congressional Research Service. In all matters dealing with administrative law, Mort has been the Judiciary Committee’s right hand. 

For more than 25 years, he has been associated with CRS. Prior 

to his service with that office he was Chief Counsel for the House 

Select Committee on Professional Sports, among other public servant positions he has held. 

In addition to these endeavors, Mort has written extensively on 

the subject of administrative law. We are proud that he will later 

this month receive the American Bar Association’s Mary C. Lawton 

Award for Outstanding Government Service. Mort obtained his undergraduate degree from New York University and his law degree 

from Harvard Law School. Thank you for being here with us. 

Our second witness is Chris Mihm, who is the Managing Director 

of GAO’s Strategic Issues team, which focuses on government-wide 

issues with the goal of promoting more results-oriented and accountable Federal Government. The strategic issues team has examined such matters as Federal agency transformation, budgetary 

aspects of the Nation’s long-term fiscal outlook and civil service reform. Sort of the easy things, right? Government reform? 

Mr. Mihm is a Fellow of the National Academy of Public Administration, and he received his undergraduate degree from Georgetown University. 

Professor Jeffrey Lubbers is our third witness. A Fellow in Law 

and Government at American University Washington College of 

Law, Professor Lubbers brings a unique perspective to today’s hearing with respect to ACUS. As many of you know, Professor 

Lubbers worked at ACUS for 20 years, including 13 years as the 

Conference’s Research Director. A prolific writer on the subject of 

administrative law, Professor Lubbers obtained his undergraduate 

degree from Cornell University and his law degree from University 

of Chicago Law School. 

I would also like to mention that about 3 years ago, Professor 

Lubbers testified before this Subcommittee at an oversight hearing 

regarding the administrative law and privacy ramifications inVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 00681 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230

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volved in establishing the Department of Homeland Security. As a 

result of this hearing, our Subcommittee spearheaded the creation 

of the first statutorily mandated privacy officer as part of DHS’s 

enabling legislation. 

Welcome back, Professor Lubbers. We appreciate that. That actually has worked out awfully well, we think. 

Our fourth witness is Professor Jody Freeman. Professor Freeman teaches administrative law and environmental law at Harvard 

Law School, where she is the Director of the Environmental Law 

Program. Prior to joining Harvard Law School, Professor Freeman 

taught at UCLA for 10 years. I appreciate some good Western perspective here. Currently, she serves as Vice Chair of the ABA Administrative Law Section Subcommittee on both Dispute Resolution 

and Environmental Law and Natural Resources. She also chairs 

the AALS Executive Committee on Administrative Law. 

Professor Freeman received her undergraduate degree from 

Stanford University and her law degree from the University of Toronto, where I have a son living now. She thereafter received her 

master’s and doctorate of law from the Harvard Law School. 

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 statement is being included in the record, I 

request that you limit your 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 5 

minutes it turns to a red light. It is my habit, interestingly it is 

actually captured here in my notes, to tap the gavel 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 in the middle of 

their thinking, but it works better if everybody has that rule. It is 

not a hard rule, just so you know recognizing 5 minutes has gone 

by. We are actually quite interested in what you have to say and 

if it goes beyond that, I don’t think today anybody is doing to be 

very exercised. 

We would appreciate that, and I if really start tapping hard then 

you know I am bored or Mel is nudging me or something. After you 

have presented your remarks, Subcommittee Members, in the order 

they arrive, will be permitted to ask questions of the witnesses subject to the 5-minute limit and possibly subject to more than one 

round. 

Pursuant to the direction of the Chairman of the Judiciary Committee, I ask that the witnesses please stand and raise your right 

hand to take the oath. 

[Witnesses sworn.] 

Thank you. You may be seated. The record should reflect that 

the witnesses answered in the affirmative. 

And Mr. Rosenberg, we would be pleased if you proceed with 

your testimony. 


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TESTIMONY OF MORTON ROSENBERG, ESQUIRE, SPECIALIST 

IN AMERICAN PUBLIC LAW, AMERICAN LAW DIVISION OF 

THE CONGRESSIONAL RESEARCH SERVICE, LIBRARY OF 

CONGRESS 

Mr. ROSENBERG. Thank you, Mr. Chairman. Mr. Chairman, Mr. 

Watt, I am very pleased to be here today. I have enjoyed for many, 

many years working with your Subcommittee and Raymond 

Smietanka and Susan Jensen and with other parts of your full 

Committee. I am a wonk in administrative law. I get off on these 

kind of things and I have for over 30 years in CRS. 

You have asked me here today to discuss and describe the background, development and goals of your Committee’s Administrative 

Law, Process and Procedure Project, CRS’s role in that project, 

what we’ve done so far, and what we hope to accomplish in the future. 

In my prepared remarks, I have detailed the genesis of your 

project, from the coincidence of the briefing that T.J. Halstead, one 

of the CRS team, and I gave a full Committee staff briefing on 

emerging issues in law and ad process and your first hearing in the 

attempt to revive ACUS with Justices Scalia and Thomas [sic]. 

My sense at that time was that there was a close nexus between 

the demise of ACUS in 1995 and the growing number of seemingly 

insoluble process and practice issues over the last decade, a sense 

that I tried to convey to the Committee. I was perhaps influenced 

by an unknowing dependence upon ACUS. I do not exaggerate 

when I say that I have always had within arm’s reach in my 33 

years at CRS a full and, until 1995, complete growing set of ACUS 

reports and recommendations, which were often my first resource 

in responding to clients such as your Committee. 

I was fortunate in the 80’s and 90’s, when I was deeply involved 

in issues involving Executive Order 12291, presidential review of 

rulemaking, and some of the first major efforts at regulatory reform that were going on in those days, and I was fortunate to call 

upon for assistance and occasionally work with Jeff Lubbers when 

he was Research Director at ACUS. In any event, I was excited—

and I am excited—at the prospect of working with your Subcommittee, with the CRS team that includes T.J. Halstead of the 

American Law Division and Curtis Copeland, of our Government 

and Finance Division, in which to assist in the two-track effort that 

you have started. That is, by providing it with background materials and information to inform the bipartisan effort to reauthorize 

ACUS and identifying the issues that might be the subject of either 

further study by a revived ACUS and/or legislative action by the 

Committee during the 109th Congress. 

As you mentioned, success was achieved with regard to the first 

effort with the enactment of the Federal Regulatory Improvement 

Act of 2004 in October of 2004. But as of this date, funding legislation has not been passed. 

The Subcommittee, however, anticipated the possibility of an extended delay in the operational startup of ACUS after passage of 

the reauthorization legislation and directed its staff to consider, 

with the assistance of the CRS team, the options that would be 

available to it to accumulate the information and the data necessary to determine whether action on a particular issue required 


110105.AAL
684

8

immediate legislative attention or was best referred to ACUS for 

further in-depth studies and recommendations. 

And after extended discussions, such traditional approaches that 

have been used in the past, such as a series of informative hearings by the Committee, possible establishment of a study commission, or the creation by the Committee of a study group, were rejected in favor of seeking and utilizing the assistance of resources 

outside of Congress and the Committee, such as academic institutions, think tanks, CRS, the Government Accountability Office, 

among others, and the potentiality of utilizing forums for the airing 

of issues outside of Washington were deemed important. 

The staff proposed and the Committee adopted a unique course 

of action. And I underline that what you’re doing here is pretty 

unique. It is novel in the way it is reaching out beyond the Beltway 

to try to get a diversity of opinions and compile a record outside 

which might be more reflective of what is really going on and what 

real practical thoughts are out there. 

What you did was pursuant to the House rule requiring Committee adoption of an oversight plan for the 109th Congress. The 

full Committee made a study of emergent administrative law and 

process issues a priority oversight agenda item for the Subcommittee. Among the benefits of so identifying the study as a Subcommittee priority was to give it the imprimatur of official legislative legitimacy and importance which might, in turn, be useful in 

enlisting the voluntary assistance and services of individuals and 

institutions throughout the Nation. 

The oversight plan identified seven general areas for study: public participation in the rulemaking process, congressional review of 

rules, presidential review of agency rulemaking, judicial review of 

rulemaking, the adjudicatory process, the utility of regulatory analyses and accountability requirements, and the role of science in the 

regulatory process. 

The CRS team was designated by the Chairman and Ranking 

Minority Member to coordinate this project. Its first task was to 

take these seven broad study areas and identify or define potential 

questions or issues for research. The thought was not to limit research to those matters within the combined experience and expertise of the team members, but to develop theme packages in order 

to sell a package or a particular issue to a law school or university 

graduate school, a public agency or a consortium of those institutions for systematic, in-depth studies by means of empirical studies 

and papers conducted and prepared by leading experts in the particular areas which might be followed by public presentations and 

findings of symposia that would reflect these competing views. 

Hopefully, the end product of that exercise is to be a compilation 

of the papers and the transcripts of the various public symposia 

similar to the two-volume working papers of the National Commission on Reform of Federal Criminal Laws published by your Committee in 1970, which contains 59 studies covering all aspects of 

the then current issues in criminal law reform. Those studies actually informed Congress’ subsequent successful reform efforts. 

As of this date, two major empirical studies are underway, and 

one forum is scheduled for this room on December 5th. 


110105.AAM
685

9

One, being conducted under the direction of Professor Jody Freeman of Harvard Law School, is looking at the nature and impact 

of judicial review of agency rulemaking over what appears to be 

now a 13-year period in the 11 Federal Circuit Courts of Appeals. 

Professor Freeman is a fellow panelist today and will describe her 

plan for this very daunting and important undertaking. 

The second study is being led by Professor William West of the 

Bush School of Government and Public Service at Texas A&M and 

will be looking into the influences on the initiation, design and development of new rules at 20 agencies during the period prior to 

the publication of notices of proposed rulemaking for public comment in the Federal Register. Professor West will be assisted by 

eight graduate students, and the study is in part funded by CRS’s 

Capstone Program grant. 

Both studies are expected to provide at least preliminary results 

by the spring of 2006. The third thing is the forum that is going 

to be lead by Professor Cary Coglianese here on e-rulemaking. 

There will be two panels of experts from the private sector, from 

the public sector, from Government, and they will be speaking with 

regard to the problems and potentialities of e-rulemaking as a way 

of fostering public participation. 

Some other projects that we hope to place include a mega-project 

dealing with the problems that appear to be arising with presidential rulemaking, through executive orders, and the Congressional Review Act. That is the mechanism by which in 1996 Congress hoped to have a more effective oversight role and to balance 

what was going on under the executive order system. 

It appears apparent that there are problems. In the last few 

years under the leadership of OMB Administrator John Graham, 

it appears the balance between Congress’ review efforts and the 

control and direction of, and influence on agency rulemaking has 

extended to the extent that one could say that perhaps there is a 

constitutional imbalance that needs to be redressed. But again, as 

Professor Freeman notes in her statement, empirical study is really 

necessary to understand just exactly how effective and perhaps untoward the presidential review mechanisms are. 

Let me stop here and allow others to talk. There are a few other 

projects that we want to institute, but we can talk about those 

from your questions. I thank you. 

[The prepared statement of Mr. Rosenberg follows:]


110105.AAN
686

10

PREPARED STATEMENT OF MORTON ROSENBERG


110105.AAO
687

11


110105.AAP
688

12


110105.AAQ
689

13


110105.AAR
690

14


110105.AAS
691

15


110105.AAT
692

16


110105.AAU
693

17


110105.AAV
694

18


110105.AAW
695

19


110105.AAX
696

20


110105.AAY
697

21


110105.AAZ
698

22


110105.ABA
699

23


110105.ABB
700

24


110105.ABC
701

25


110105.ABD
702

26


110105.ABE
703

27


110105.ABF
704

28


110105.ABG
705

29


110105.ABH
706

30


110105.ABI
707

31

Mr. CANNON. Thank you, Mort. The gentleman from North Carolina and Ranking Member of the Subcommittee is also the Chairman of the Congressional Black Caucus and has been extraordinarily busy with the passing of Rosa Parks, and so he has been 

concerned about his time. I leaned over and asked him if he 

thought I should tap, and his response was more or less no, this 

is great because we don’t have to read it. And so I suggest that is 

exactly my view, by the way. And so we are going to be a little bit 

liberal, in fact, forget the clock. Just be interesting and, if you see 

one of us nodding off, then you know you have probably gone on 

too long. 

Mr. ROSENBERG. I have one or two——

Mr. CANNON. We would like to hear that. Before you do so, let 

me suggest that we may be a little bit loose on the questioning too. 

As you were going through what were saying, Mort, it had occurred 

to me, are you familiar with WIKIsikis or Wikipedia, any of the 

panel? This is like a way for people to get online and work together. And you should look up Wikipedia, W-i-k-i-p-e-d-i-a, not the 

word spelling with the extra ‘a,’ and it is actually remarkable. It 

is a great encyclopedia that is created by people all over the world. 

And I suspect that, while we don’t have this broad a base for the 

Administrative Procedure Act as we do have for an encyclopedia, 

there are many people that are interested and so a public forum, 

it might be interesting as part of the process you’re considering. 

There are other tools. My office uses a tool called Net Documents, 

which most large law firms use, and it is a way to work collaboratively online. You may want to think about some of these tools 

in the process because if some wonk somewhere can take 5 minutes 

and review the latest activity and says, ‘‘Wow, you’re wrong, you 

have missed an idea,’’ it is a great way to really get a collaborative 

process. In the end, what we need here is not just a bipartisan 

process, we need a process the American people buy into because 

we are talking about 10 percent of our economy here. And that 10 

percent does many things. 

We were joking earlier about whether it does good things or not 

and it probably does, but it also limits the output of our economy 

in a dramatic way. So to the degree that we can remove obstacles 

that are not helpful, maybe create new obstacles that would be 

more helpful to what we don’t have right now, and be more rational, we would do well. And that I think means that you might have 

a very, very large group of people that get engaged in that process. 

Thanks, Mr. Mihm. You’re recognized for 5 minutes or whatever. 

TESTIMONY OF J. CHRISTOPHER MIHM, MANAGING DIRECTOR 

OF STRATEGIC ISSUES, UNITED STATES GOVERNMENT ACCOUNTABILITY OFFICE 

Mr. MIHM. Thank you, Mr. Chairman and Mr. Watt. It is an 

honor to be here. And Mr. Chairman, I will try and take your challenge of being interesting. That is a high bar but I am very pleased 

to be here and to contribute to your overview of Federal rulemaking and obviously we look forward to supporting this Subcommittee in its comprehensive and bipartisan review as you move 

forward. 


110105.ABJ
708

32

As you mentioned in your opening statement, sir, over the last 

decade or so, at the request of Congress, we have prepared over 60 

reports and testimonies reviewing cross-cutting aspects of rulemaking procedures and practices. Overall that work has found 

that—has identified important benefits of the efforts to enhance 

Federal rulemaking. At the same time, we have also pointed out 

some potential weaknesses and impediments to realizing those expected improvements. We have also identified some trends and 

challenges in the rulemaking environment that have emerged over 

the years that in our view merit closer congressional attention and 

consideration. 

I will touch on each of these points in turn. In terms of the benefits then, as detailed in my written statement, our review has identified at least four overall benefits associated with existing regulatory analysis and accountability requirements. First, encouraging 

and facilitating greater public participation in rulemaking that 

clearly gives opportunities for the public to communicate with 

agencies by electronic means have expanded and requirements imposed by some of the regulatory reform initiatives have encouraged 

additional consultation with affected parties. 

Second, improving the transparency of the rulemaking process. 

Initiatives implemented over the past 25 years have helped to 

make the rulemaking process more open by facilitating public access to information, providing more information about the potential 

effects of rules and available alternatives, and requiring more documentation and justification of agency decisions. 

Third, increasing the attention directed to rules and rulemaking. 

Our reports have pointed out that the oversight of agencies’ rulemaking can and has resulted in useful changes to those rules and 

furthermore that agencies’ awareness of this added scrutiny may 

provide an important and direct effect, potentially leading to less 

costly, more effective rules. 

And finally, increasing expectations regarding the analytic support for proposed rules. The requirements that have been added 

over the years have raised the bar regarding information and analysis needed to support regulations. Such requirements have also 

prompted agencies to provide more data on the expected benefits 

and costs of their rules, and encouraged the identification and consideration of available alternatives. 

On the other hand, as I mentioned, we have also identified at 

least four recurring reasons why reform initiatives have not been 

as effective. I think these are certainly consistent with the research 

agenda that the Subcommittee is putting forward. 

First, there has been a lack of clarity and other weaknesses in 

key terms and definitions. For example RFA’s analytical requirements, which were intended to help address concerns about the impact of rules on small entities, do not apply if an agency head certifies that the rule will not have, ‘‘a significant economic impact on 

a substantial number of small entities.’’ However, RFA neither defines this key phrase nor, importantly, places responsibility on any 

party to define it consistently across the Government, which not 

surprisingly has led to quite a bit of variance. 

Second, the limited scope and coverage of various requirements. 

For example, we pointed out last year that the relatively small 


110105.ABK
709

33

number of rules identified as containing mandates under the unfunded mandates legislation could be attributed in part to the 14 

different exemptions, exclusions and other restrictions on the identification of regulatory mandates under the act. 

Third, the uneven implementation of the initiatives’ requirements. For example, our reviews of economic assessments that analyze regulations prospectively has found that those assessments are 

not always useful for comparisons across Government, because they 

are often based on different assumptions of the same key economic 

variables. 

And finally, a predominant focus on just one part of the regulatory process, and Mr. Chairman, in your opening statement this 

is certainly a point you were making. We have placed more analytic and procedural requirements on agencies’ development of 

rules than on other phases of the regulatory process, from the underlying statutory authorization, through effective implementation 

and monitoring of compliance with rules, to an evaluation of existing rules. What are we actually getting in terms of benefits and 

costs associated with rules? 

Thus, while rulemaking is clearly an important point in the regulatory process, other phases can also help determine the effectiveness of Federal regulation. 

The findings and emerging issues reported in our body of work 

on Federal rulemaking suggest a few areas in which Congress 

might consider legislative action or further study, which are of 

course certainly consistent with those issues that are laid out in 

the Subcommittee’s oversight plan and also as Mort was touching 

on in his written statement. 

We believe that first there is a need to reexamine rulemaking 

structures and processes, including APA, again a point, Mr. Chairman, you made in your opening statement. 

Second, there is a need to address previously identified weaknesses of existing statutory requirements. 

Third, we should promote additional improvements in the transparency of agencies’ rulemaking actions. 

And fourth, a point, Mr. Watt, that you were making in regards 

to information technology, we need to open a broader examination 

of how developments in information technology might effect the notice in common under rulemaking process. And as you pointed out, 

sir, there are key issues of security, transparency and access that 

all need to be carefully weighed and balanced off against one another. 

Mr. Cannon, Mr. Watt, this concludes my statement. I will be 

happy to answer any questions you may have. 

[The prepared statement of Mr. Mihm follows:]


110105.ABL
710

34

PREPARED STATEMENT OF J. CHRISTOPHER MIHM


110105.ABM
711

35


110105.ABN
712

36


110105.ABO
713

37


110105.ABP
714

38


110105.ABQ
715

39


110105.ABR
716

40


110105.ABS
717

41


110105.ABT
718

42


110105.ABU
719

43


110105.ABV
720

44


110105.ABW
721

45


110105.ABX
722

46


110105.ABY
723

47


110105.ABZ
724

48


110105.ACA
725

49


110105.ACB
726

50


110105.ACC
727

51


110105.ACD
728

52


110105.ACE
729

53


110105.ACF
730

54


110105.ACG
731

55


110105.ACH
732

56


110105.ACI
733

57


110105.ACJ
734

58


110105.ACK
735

59

Mr. CANNON. I thank you very much. You know you talk about 

a high bar. For APA wonks, the bar appears substantially lower. 

Like a heartbeat probably works. 

Mr. Lubbers, we appreciate your testimony now. 

TESTIMONY OF PROFESSOR JEFFREY S. LUBBERS, FELLOW IN 

LAW AND GOVERNMENT PROGRAM, WASHINGTON COLLEGE 

OF LAW, AMERICAN UNIVERSITY 

Mr. LUBBERS. Thank you, Mr. Chairman, Mr. Watt. It’s great to 

be here with my distinguished panel members today, and I guess 

I do qualify as an administrative procedure wonk having worked 

in the area for so long. 

I found much to agree with in my fellow panelists’ statements 

and very little to disagree with. 

I first want to applaud you and your Committee for leading the 

successful effort to reauthorize the Administrative Conference, 

which had to close its doors—exactly 10 years ago yesterday, by the 

way. 

I truly believe it was one of the Federal Government’s most cost 

effective institutions and it has been sorely missed. 

I view this hearing as an opportunity to suggest a research agenda for ACUS that would help convince the appropriators that the 

relatively small investment in ACUS would be repaid many times 

over. 

I also applaud the Committee for sponsoring a series of empirical 

research projects that would provide reliable data for a reconstituted ACUS to use in making recommendations to use in improvements in the administrative process. I think it is a great idea and 

the two projects already underway to be carried out by Professor 

West and by Professor Freeman should be invaluable to all of us. 

Let me say that I think there is one analog that I can recall the 

Senate Governmental Affairs Committee back in the late 70’s, 

maybe early 80’s, late 70’s, did a series of empirical studies that 

provided a very good basis for regulatory reform proposals in the 

80’s. 

I have provided the Committee with a lengthy menu of topics 

that I believe might form the research agenda of a revived ACUS. 

I group these topics into several major areas. 

First, the rulemaking process. The notice-and-comment rulemaking process is the preferred way for most agencies to make policy. However, this process has become much more complicated in 

the last 35 years due to additional procedural and analytical requirements, to the point where many commentators are worried 

that the process has become too difficult—or ossified, to use the 

two-dollar word. And agencies seem to be increasingly trying to 

avoid these requirements by making policy through less visible 

types of nonrule rules, such as guidance documents that are not 

subject to notice and comment. 

Therefore, I believe that one area researchers should pursue is 

the increasing complexity of the rulemaking process. For example, 

agencies are required to prepare about a dozen separate analyses 

in rulemaking. A study of the costs and benefits of these impact 

analyses and how they could at least be consolidated would be useful. 


110105.ACL
736

60

I also agree with Mort Rosenberg that the systems for both 

White House and congressional review of agency rules should be 

examined to see what kinds of changes agencies have made in proposed rules, and how the length of the rulemaking process has 

been affected. 

There is also a renewed emphasis on the need for sound science 

in rulemaking. Last January OMB issued a bulletin that requires 

administrative agencies to conduct a peer review of, ‘‘scientific information disseminations.’’ This followed enactment in year 2000 of 

the Information Quality Act, which was inserted as an undebated 

amendment into an omnibus appropriations bill. 

The IQA requires every agency to issue guidelines to ensure the 

quality, objectivity, utility and integrity of information disseminated by the agency. 

These two OMB-overseen initiatives require significant agency 

implementation activities, but it is unclear at this point how they 

have affected the rulemaking process or whether they have provided any improvements in regulatory science. 

Another study I recommend is to find out what is holding back 

negotiated rulemaking. Since the mid-90’s its use has plateaued or 

even fallen despite its great promise. It would be useful to mount 

a major study of why it is faltering and what should be done to revive it. 

The other major change, as others have mentioned, to the rulemaking process has been the impact of the Internet, leading to 

what is called e-rulemaking. Since ACUS’s defunding, there have 

been enormous developments in this area especially in the technology. But the legal developments are moving more slowly. I have 

tried to catalog the legal issues that provide challenges to the twin 

goals of better information dissemination and increased public participation in the rulemaking process. 

These legal issues include such things as how to best integrate 

the data, docketing questions, archiving, copyright protection, security, and privacy just to name a few. 

Beyond the rulemaking process itself, there are a lot of broader 

regulatory issues that need study: regulatory prioritization, retrospective reviews of agency rulemakings to see how the actual costs 

and benefits match the predicted costs and benefits, alternative approaches to regulation and enforcement—something that my colleague Jody Freeman has written very excellent articles about. Use 

of waivers and exceptions—something we have heard a lot about 

after the Katrina hurricane—federalism issues, and agency structural issues, such as how should departments and commissions be 

structured. 

There are also some pressing issues of administrative adjudication. The ALJ program, Administrative Law Judge program, is still 

having problems with agencies seeking to use other types of hearing officers too often. Agency appeal boards are coming under scrutiny in the immigration, Social Security and patent and trademark 

areas. And mass adjudication programs like the Social Security 

Disability program are facing huge backlogs and caseload pressures. 

And finally, there are recurrent issues concerning judicial review. 

The agency-court partnership is of obvious concern to all three 


110105.ACM
737

61

branches of Government as exemplified by the Chevron case, in 

which the Supreme Court basically told the judiciary to defer to 

reasonable interpretations of statutes made by executive agencies. 

This simple dictum has spawned many cases concerning what this 

deference should consist of and to what types of interpretations it 

should be applied. 

There is no shortage of scholarly commentary on these cases. But 

there is an absence of consensus-building around this issue. The 

courts are struggling with these issues, and a renewed ACUS could 

help provide some focus for the courts. 

One other judiciary issue I will mention, which relates to attorneys’ fee issues. This is something that ACUS had a role in, in 

overseeing the rules under the Equal Access to Justice Act. But a 

recent Supreme Court decision has limited what is meant by the 

term ‘‘prevailing party’’, which allows parties to get attorneys’ fees. 

The impact of this decision should be of great interest to Congress, 

which could of course make its intent clear if it so wished. 

In conclusion, let me say that this is a short summary of a 

lengthy list. But even the full list is hardly a comprehensive menu 

of projects that could be tackled by a revived ACUS. It is a collection of issues that have accumulated in the past decade. The new 

ACUS chairperson and his or her counsel would obviously have 

their own priorities. But I hope that this listing does show the need 

for a revised and continuing focus on the administrative procedural 

issues that often get short shrift but can make or break the success 

of governmental programs. 

For 28 years ACUS provided a low cost center of research scholarship and consensus-building on administrative law within the 

Federal Government and I believe that now, through the efforts of 

you and your Committee, that ACUS has been reauthorized, it 

should be funded as soon as possible. Thank you, and I look forward to your questions. 

[The prepared statement of Mr. Lubbers follows:]


110105.ACN
738

62

PREPARED STATEMENT OF JEFFREY S. LUBBERS


110105.ACO
739

63


110105.ACP
740

64


110105.ACQ
741

65


110105.ACR
742

66


110105.ACS
743

67


110105.ACT
744

68


110105.ACU
745

69


110105.ACV
746

70


110105.ACW
747

71


110105.ACX
748

72


110105.ACY
749

73


110105.ACZ
750

74


110105.ADA
751

75


110105.ADB
752

76

Mr. CANNON. My sentiment about funding exactly. I have been 

sitting here trying to figure out how we in an era of reducing programs by number as opposed to improving Government through a 

process is more important. We are working on that. Thank you, 

and appreciate your comments. 

Professor Freeman. 

TESTIMONY OF PROFESSOR JODY FREEMAN,

HARVARD LAW SCHOOL 

Ms. FREEMAN. Mr. Chairman, Mr. Watt, members of the staff, I 

am delighted to be here today. As you know, I specialize in administrative law and I want to line up on your side in terms of being 

excited all the time about administrative law issues. If anybody 

wants to keep talking about it after the end of the hearing I will 

stay as long as anyone likes. It is hard to find friends. Administrative law and administrative process issues have a PR problem in 

this regard, and I think that is part of the reason. 

I have spent a lot of time trying to think about how to rename 

the field. Things like ‘‘Government, power and you’’ come to mind. 

But I want to focus on two points of my testimony. I have gone on 

at length in my written testimony, and I won’t repeat all of it. 

First, I want to express the absolute clarity of the need for empirical research on what Government agencies do and how well 

they do it. We know precious little. We don’t know much at all 

about the very important process of generating rules which, as you 

all well know, reach every corner of our economy and every aspect 

of social life. The high volume of rules coming out of agencies like 

DHS and EPA and HHS and DOT, these rules have the power, the 

effect of legislation. And yet we know almost nothing about how 

well we are doing this and how we might improve it. And there is 

a clear need, as this Committee well knows, for an informed approach to congressional law reform efforts. 

As you know, Congress passes a few hundred laws every year. 

The Supreme Court issues maybe between 70 and 100 cases every 

year. And yet we have thousands of rules coming from the Federal 

Government every year, and we have almost no—I feel safe in saying—only almost no careful empirical analysis of what agencies are 

doing. 

And this is a really serious, I think, problem because we can’t 

answer some essential questions. We can’t answer the question yet, 

how well is congressional review of agency rulemaking going? We 

can’t answer whether OMB oversight is effective and whether it is 

effective for some agencies or not. Some agencies may perform costbenefit analysis particularly well, some agencies maybe fairly poorly. We can’t answer the question, have we heaped on too many of 

these analytic burdens so that we are actually undermining the 

ability of agencies to promulgate rational, defensible, smart rules? 

Intuitively you would expect more oversight, more analysis, more 

information to help the rulemaking process. But the problem is 

that we don’t know how well we are actually performing. 

So we have only scratched the surface in starting to explore 

these issues, and I think a coherent, comprehensive empirical research project would be enormously helpful to your efforts in Congress to either avoid law reform that is wasteful and distracting 


110105.ADC
753

77

and just a bad idea, and to target your law reform efforts and your 

money and your time on things, on measures that will be beneficial. There will be short term measures, longer term measures, 

but what you want I believe is a list of priorities and a sense of 

where you will get the most bang for your proverbial buck. And I 

think that is something that a revived ACUS that is appropriately 

funded can really contribute to. 

There are many myths about the administrative process. There 

is a figure that we all know about which circulated for years which 

was a figure that claimed that 80 percent of EPA’s rules got challenged, and administrators of EPA cited this and people cited it in 

congressional testimony. And the truth is there was absolutely no 

empirical basis for the figure. People just thought it was 80 percent. 

This is not the way one ought to go about law reform and planning for administrative decision making. 

There is a similar figure floating around, and I believe there is 

a preliminary study that CRS did—I may be wrong about that—

but there is a figure floating around that 50 percent of rules that 

get challenged upon judicial review get struck down. 

Some people believe it is as high as 50 percent. This is something 

the study I am doing is looking at, and the truth of the matter is 

we just don’t know. We don’t know how well rules fair when they 

get challenged. 

So I will be happy to talk a little bit about the study and give 

you a sense of it. We are at the preliminary stage, but this is the 

kind of thing we want to know about. Because it would be a big 

mistake and a waste of resources to conclude that so many rules 

are being challenged and so many rules have been struck down 

that the process isn’t working and Congress ought to intervene to 

fix it if in fact that is not the case. 

So we really need to know the answers to these questions. 

Just briefly, the study that I am conducting I think can help 

shed some light on at least how one project is going about looking 

at the judicial review of rulemaking and also I think shed a little 

bit of light on the cost involved. 

This study grew out of conversations between me and staff at the 

Congressional Research Service, in particular, Curtis Copeland, 

which of course stem from this Committee’s interest in sponsoring 

empirical work. And we focused on the fate of agency rules upon 

judicial review. This study is the most comprehensive study I am 

aware of. We look at a database initially of 10,000 cases but culled 

to 3,000 cases, of which we think there are about 20 percent involving rulemaking, challenges to rules. So we think we are going to 

end up with about 600 cases, which is a very big database of cases, 

and every one of them is being coded in the most deliberate manner so that what we can pull out of this data would be preliminary 

inferences, preliminary answers to questions like how many rules 

do get struck down across all of the 11 circuit courts? How often 

do interest groups of a particular type succeed in challenging rules? 

Does it make a difference what agency promulgated the rules? Do 

some agencies always win, do some agencies always have their 

rules struck down? 


110105.ADD
754

78

We don’t know the answers to these questions, and we are coding 

the data for even more than that. So if we want to ask even more 

detailed questions; for example, how do you do across the circuits? 

How does the Fifth Circuit compare to the First Circuit? Does it 

matter which panel of judges you come before in terms of the rate 

at which they strike rules down? 

All of these questions we are asking and we should be able we 

hope to infer something here as well about how closely judges are 

really reviewing rules because we are going to code the reasons 

why the rules are struck down, the basis for challenging why they 

are struck down when they are struck down. So we should be able 

to tell something about whether the courts are reviewing rules with 

a very serious, rigorous kind of approach which we would call 

‘‘hard look review’’ or whether they are giving these rules rather 

a soft glance and not being particularly rigorous in reviewing them. 

So I am happy to talk more about that study. I will tell you 

something about what it costs, and this leads to this problem of incentives to do this kind of research. I will be very honest with you, 

law professors really don’t want to do this. And the reason is not 

because we are not interested but you don’t get tenure for it. These 

kind of empirical studies give us very few rewards. Luckily I have 

tenure. I can just be interested in it. But without incentivizing this 

kind of work that means without a body like ACUS that can draw 

on academic expertise and tempt academics by saying—guess what, 

you can interact with some of the best minds in practice, some of 

the best minds in agencies, you will have lots of access to this collaborative, cooperative exercise, without incentives—it is going to 

be very hard to generate this kind of work, the work that you need 

to inform your efforts. 

The other thing I want to mention about empirical work is it 

takes time and money. It is slower going than we would like. It is 

hard to do. My project involved an empirical expert who directs empirical research at UCLA School of Law where I formerly was a 

professor before I joined Harvard. You need someone with that 

kind of statistical expertise to do this work so it’s reliable and credible for your purposes. I have a team of four research assistants. 

These people are very underpaid, and I need even more of them to 

do this properly. The project is probably easily costing $10,000 for 

the first cut through the data, and I imagine it will get easily to 

$20,000, and the generosity of the Dean of the Harvard Law School 

is making this possible. There is no other source of funding to do 

it. 

As you well know, Mr. Chairman, it is very hard to go out to 

foundations or anybody and say I am doing a fascinating project on 

the administrative process, even though it is about the way the 

American Government works and how well it works. 

Finally, my second big point and my most important point I 

think here for your purposes may be to reinforce the need to invest 

in ACUS. A small investment is going to go a very long way. This 

is a body that is going to be able to make recommendations in a 

way that no other body can. The American Bar Association doesn’t 

have the legislative clout and the credibility with agencies that 

ACUS will have. There is a Center for Rulemaking that Professor 

Kerwin has initiated at the American University. It is a very interVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 00754 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230

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esting center, but it doesn’t have the resources. It doesn’t have the 

ability to do the kinds of things that ACUS can do. And as Justice 

Scalia noted very clearly, there is a big difference when ACUS 

comes to agencies and says we want to study you. They perceive 

that as potentially helpful, and not as something that will potentially be an obstacle that will get in their way. 

I really believe that ACUS is a bargain for Congress. And as you 

mentioned, Mr. Chairman, as other panelists have mentioned, it is 

clear that funding ACUS to a tune of the several million dollars 

should not be seen as in competition with other efforts that are 

very pressing in the Federal Government. ACUS can help to improve our efforts, as you mentioned, in terms of disaster relief response and also in terms of security, national security concerns. If 

you make Government work better and you figure out ways to improve it, you’re going to assist in all those endeavors. It is well 

worth the investment. 

I just want to add to Professor Lubbers’ long list a few ideas for 

what I believe is really the next generation of ACUS. Ten years is 

a long time. Things have changed since ACUS was around, and 

there is, as Professor Lubbers has mentioned, a backlog of work to 

do. But in particular a few things have developed that I think are 

very worthy of ACUS’s time. One has been mentioned here today, 

privatization and contracting out. We really do not have administrative procedures adequate to guide privatization and contracting 

out. Private service providers are increasingly performing functions 

we have traditionally thought of as public, including functions associated with the military functions, prisons, national security. And 

the truth of the matter is most of these actions typically fall outside of the administrative law process and protections. And we 

need to think carefully about that. ACUS can spearhead in a bipartisan way a project to think about that. 

Second, I do want to mention it is the 10th anniversary of the 

Small Business Regulatory Enforcement Fairness Act and there 

have been concerns that small businesses are not the ones benefiting from getting an early look at these rules, but rather that, potentially, big business is driving the small business agenda. It is 

something that Congress may be interested in, something certainly 

that ACUS could look at. 

And finally, where ACUS could direct further research, as again 

has been mentioned here today and I want to reinforce it, is the 

reconciliation of the administrative law principles of fairness and 

openness and transparency and effectiveness with the clear imperatives of national security. This was not on the radar screen 10 

years ago, and it is front and center on the radar screen right now. 

There are agencies in the Federal Government that are not subject at the moment to the kind of rigorous cost-benefit analysis and 

the kind of other requirements that we impose on—that we normally impose on the process. And how are we going to reconcile the 

need to protect our national security while at the same time not 

abandon the norms and principles that inform administrative law? 

I think that’s a huge challenge. I don’t know the answer. 

But we are operating with a 60-year-old document, the Administrative Procedure Act, and we need to think very carefully about 


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where and how to engage in reform. And I think ACUS will be well 

worth a small investment of Congress’ time and money. Thank you. 

[The prepared statement of Ms. Freeman follows:]

PREPARED STATEMENT OF JODY FREEMAN

Mr. Chairman and Members of the Subcommittee: 

Thank you for the invitation to testify at the Oversight Hearing on the Administrative Law, Process and Procedure Project. 

I am a Professor of Law at Harvard Law School. I specialize in administrative 

law and environmental law. My scholarship focuses on congressional delegation of 

authority to agencies, inter-agency coordination, public-private collaboration, dispute 

resolution, regulatory innovation, and privatization. I am the Vice-Chair of the 

American Bar Association Administrative Law Section Sub-Committee on Dispute 

Resolution as well as the Vice Chair of the Sub-Committee on Environmental Law 

and Natural Resources. I am the current Chair of the American Association of Law 

Schools (AALS) Executive Committee on Administrative Law. 

My testimony focuses on two points: (1) the need for empirical research to support 

congressional law reform efforts in administrative law; and (2) the benefits to be 

gained by funding the Administrative Conference of the United States (ACUS) to 

produce and sponsor such empirical research. I will also describe the empirical 

project on agency rulemaking that I have undertaken in consultation with the Congressional Research Service (CRS), a project that I hope will further this Subcommittee’s Oversight Plan and which might help to inform other empirical studies 

sponsored by ACUS, should it be funded. Although I will confine most of my remarks to the topic of rulemaking, the scope of what ACUS can and should undertake to study is broader. I will briefly touch upon some other matters ACUS might 

examine if it is funded, but a more developed proposal for the agency’s agenda will 

be offered by my co-panelist, Jeffrey S. Lubbers. 

I. THE NEED FOR EMPIRICAL RESEARCH TO ASSIST CONGRESSIONAL LAW REFORM

As this Subcommittee has noted, Congress needs more information on rulemaking 

and other aspects of the administrative process in order to focus its law reform efforts. We know precious little about the administrative process. Consider: Each year, 

Congress enacts a few hundred laws, the Supreme Court hands down fewer than 

a hundred decisions, and regulatory agencies promulgate several thousand rules. 

Yet while the legislative and judicial processes are the object of very close scrutiny 

and rigorous empirical analysis, the rulemaking process attracts strikingly little 

scholarly attention. Are rules effective? Are they produced in a timely manner? Are 

they produced with sufficient public input? Are they cost-effective? Do congressional 

and executive oversight mechanisms improve rules? Are rules challenged frequently? Do most challenged rules survive judicial review? We simply cannot answer these questions. The dearth of empirical research on rules is especially problematic given the importance of rulemaking as a vehicle for social and economic policy. Many rules have very significant social and economic effects. The agencies that 

produce a high volume of rules, including the Department of Transportation, the 

Environmental Protection Agency, the Department of Homeland Security, and 

Health and Human Services affect virtually every corner of the U.S. economy and 

every aspect of social life. Yet our empirical knowledge of the effectiveness of their 

rulemaking processes remains woefully thin. 

Without the benefit of reliable empirical research, Congress might waste both 

time and money on law reform efforts that are neither necessary nor effective. It 

would be a mistake, for example, to add more oversight mechanisms to rulemaking 

if the existing measures, such as cost-benefit analysis and peer review, work well. 

Intuitively, one would expect these additional steps to improve the quality of rulemaking, yet we cannot say with confidence whether or not this is true. Among the 

questions to be investigated are: How well do agencies perform these analyses? Do 

these oversight mechanisms improve the quality of rules? Do they slow down the 

rulemaking process unnecessarily? Are they a net benefit or a net cost? While we 

have some preliminary evidence on these questions, scholarly work to date has only 

scratched the surface. 

Moreover, to the extent that scholars do study the rulemaking process, the majority of attention focuses on ex ante processes in rulemaking (such as cost-benefit 

analysis). There is virtually no ex post empirical study of the rules themselves. To 

put a finer point on it, we do not know how well rules are implemented and whether 

they achieve their goals, and we lack mechanisms for feeding such ex post evaluation back into the rulemaking process. 


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Indeed, we have not even agreed upon what measurement tools we would use to 

answer the most basic questions. For example, how would we answer the question, 

Are regulatory agencies getting better at rulemaking? Would we look to see if the 

agency is doing a better job of setting its priorities? Whether it is issuing rules faster than it used to? Doing a superior job of analyzing scientific data? Obtaining more 

feedback about the effect of its rules, and integrating it into decision making? Congress might be interested in knowing the answer to these questions before it undertakes reform. Perhaps agencies that are less successful at one or more of these steps 

might be encouraged to adopt the ‘‘best practices’’ of the more successful agencies. 

Congress might wish in some instances to require the adoption of certain practices 

across the board. With only anecdotal and impressionistic evidence, however, Congress would simply be guessing at what works. 

There are many myths about the administrative process that persist for years, despite their dubious origins. For example, scholars and practitioners of administrative law long subscribed to the widely-held belief that the vast majority—80 per cent—of regulations issued each year by the Environmental Protection Agency 

(EPA) were challenged in court. This statistic was relied upon by academics, legislators, and journalists, quoted by successive administrators of EPA, and cited before 

congressional committees as truth. The only problem was that the statistic had no 

factual basis. Indeed, one empirical study investigating its accuracy determined that 

no more than 35 per cent of the EPA’s rules were challenged. This rate of challenge 

is still significant, and might justify law reform efforts aimed at reducing legal challenges to rules. Yet the example ought to make us cautious. Some concerns about 

the administrative process might be overstated, and some understated. There may 

be similar mistaken assumptions about how many rules are invalidated upon judicial review. Some believe the figure is as high as 50 per cent, but we don’t really 

know. It would be a mistake to conclude, without knowing the real rate, that Congress needs to intervene to address this perceived problem. Only with good data can 

Congress choose wisely where to invest its resources, and prioritize which law reform efforts are most needed now, and which might be longer-term efforts. 

In its Oversight Report, this Subcommittee has already identified issues that require further study, including (1) public participation in the rulemaking process; (2) 

Congressional review of rules; (3) Presidential review of agency rulemaking; (4) judicial review of agency rulemaking, (5) the agency adjudicatory process; (6) and the 

utility of regulatory analysis and accountability requirements; and (7) the role of 

science in the regulatory process. I agree that these are important areas for examination and, after discussions with the CRS, I agreed to undertake an empirical 

study of one of these issues: the judicial review of rulemaking. I describe the study 

below. 

II. DESCRIPTION OF FREEMAN/DOHERTY EMPIRICAL STUDY: JUDICIAL REVIEW OF RULEMAKING

Origin of the Study 

This study grew out of conversations with the CRS about this Subcommittee’s in- terest in empirical work on the administrative process. Among the important subjects CRS identified for scrutiny at the behest of this Subcommittee is the fate of 

agency rules upon judicial review. I agreed to do an empirical study on this topic 

together with Joseph Doherty, Associate Director for Research in the Empirical Research Group at the UCLA School of Law, and with the help of a team of research 

assistants at Harvard Law School. We expect to have preliminary results in January 2006 and a final report by the end of August 2006. 

Purpose of the Study 

The goal of the study is to investigate what happens to rules upon judicial review, 

including the rate at which they are struck down; the reasons why they are struck 

down or upheld; and any trends in the cases that might be attributable to differences in (1) the agencies generating the rules; (2) the litigants challenging them; 

or (3) the Circuits hearing the cases. While this study is only a beginning, we expect 

it to yield useful data on what is actually happening to agency rules after they are 

promulgated and once they are challenged. 

Database 

We are using a comprehensive database consisting of all federal appellate cases 

involving administrative agencies (not just challenges to agency rules) from 1991 to 

2003. The database consists of 3,075 cases that were decided in the Circuit courts 

during this thirteen-year period. The database was culled from an initial database 

of 10,000 cases, which was collected and partially coded by the Administrative Office 

of the Courts. We obtained the original database with the assistance of the CRS. 


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To my knowledge, this database is unique in its breadth and in the time span it 

covers. 

Preliminary Report 

We are in the process of identifying those cases in which an agency’s conduct in 

promulgating a rule was challenged. This includes both formal and informal rulemaking. Preliminary analysis suggests that approximately 20 per cent of the cases 

will be identified as rulemaking cases. Thus, we expect to analyze approximately 

600 cases of rulemaking, a significant number and far in excess of the number of 

cases that have been examined to date. We will read every case in this group, and 

collect highly detailed information about who challenged the rule, the basis for the 

challenge, and the reasoning behind the court’s decision to uphold or overturn the agency’s action. This information will be collected and entered into a database. 

Analysis of the data will permit us to make inferences about general characteristics 

and trends in the courts’ reasoning. 

Relevance 

Why does this research matter? Right now, we simply do not know whether agency rules are generally upheld or not, or whether some agencies are more likely to 

have their rules struck down compared to others. Nor do we know whether challenges brought by certain types of groups are more successful than those brought 

by others. Moreover, we lack comparative knowledge about different Circuits i.e., 

whether outcomes vary across the Circuits, or indeed across specific panels of particular judges. In addition to shedding light on these matters, the study should enable us to say something about the extent to which courts are taking a ‘‘hard look’’ at agency rules (meaning that courts closely examine the rulemaking process), 

versus a more cursory ‘‘soft glance’’ kind of review (in which review is less exacting). 

Without answers to these questions, we cannot begin to answer the broader question of whether the rulemaking process is producing effective rules (or at least rules 

resistant to judicial invalidation), and whether judicial review is performing its intended function. 

III. THE BENEFITS OF FUNDING THE ADMINISTRATIVE CONFERENCE

OF THE UNITED STATES

Funding ACUS requires a relatively small investment but has the promise of big 

returns. I echo what this Subcommittee heard in the 108th Congress from Justices 

Scalia and Breyer, among others, about the unique role that ACUS has played in 

the past by serving as a remarkably productive and bipartisan ‘‘think tank’’ for administrative law reform. I agree with the consensus view that at past funding levels, 

and at funding levels being considered by the 109th Congress, ACUS was and will 

continue to be a bargain. Its key strength is in bringing together academics, experienced practitioners, and agency officials—people of great distinction from both the 

public and private sectors—to think carefully and systematically about sensible good 

government reform. As Justice Scalia only half-jokingly pointed out, many of these 

people charge very high billable rates; Congress gets their help for free. 

As I argued above, and as this Subcommittee well knows, there is an obvious need 

for empirical study of the administrative process, and ACUS is the institution best 

situated to generate and sponsor high quality research. The need for empirical research, particularly in the area of administrative law, is increasingly being recognized. In July 2004, the American University launched the Center for the Study of 

Rulemaking, which has as its mission examining and improving the processes used 

by government agencies to develop regulations. The Center has organized two conferences: one on e-rulemaking and another on the state of rulemaking in the federal 

government. While not devoted solely to empirical research, the Center has encouraged such study. Likewise, the American Association of Law Schools (AALS), a nonprofit association of 166 law schools, has set ‘‘empirical scholarship’’ as the theme 

of its annual meeting in 2006. I am Chairing the Administrative Law Section meeting this year at the AALS and, in line with the overall theme, we are focusing on 

empirical study of administrative law. But this will be a one-time event. 

The shift toward empirical study—what Roscoe Pound described as ‘‘law in ac- tion’’—may be ascendant, but it is neither coordinated nor coherent. While they can 

partner with ACUS, neither the Center for rulemaking, the AALS, the Administrative Law Section of the American Bar Association (ABA) nor any other body can by 

itself organize and direct a program of empirical study of administrative law issues. 

Moreover, as Justice Scalia testified before this Subcommittee last year, agencies 

view any review by these non-governmental bodies with suspicion. ACUS, on the 

other hand, is a ‘‘government insider,’’ with legislative clout. Justice Scalia described 

the difference as follows:


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I was Chairman of the Ad. Law Section for a year, and there’s a big difference 

between showing up at an agency and saying, ‘‘I’m from the American Bar Association, I want to know this, that, and the other,’’ and coming there from the 

Administrative Conference which has a statute that says agencies shall cooperate and provide information. It makes all the difference in the world.

Only ACUS is positioned to sustain these studies over the longer-term, and to 

shape a coherent research agenda in coordination with Congress. 

IV. THE ADMINISTRATIVE CONFERENCE’S AGENDA

This Subcommittee has already identified research questions that it would like to 

see ACUS pursue, and other witnesses on today’s panel will have more to say on 

that topic. While I would not characterize the administrative state as being in crisis, 

it is operating with a sixty year old manual—the Administrative Procedure Act—

and there are critical areas in need of closer examination and reform. Jeffrey S. 

Lubbers, in his submissions, has provided a list of issues that require further study, 

and I am in full agreement with him. I wish only to underscore that I believe that 

ACUS could be the incubator for the next generation of administrative law research 

and I would suggest three other research areas on which it might focus. 

The first is privatization and contracting out. Private entities increasingly perform what we traditionally view as government functions, including some functions 

associated with the military, prisons and national security. Private service providers 

have contractual obligations vis-a`-vis the government, but their actions typically fall 

outside of administrative law protections, process and regulation. How, if at all, 

should we conceive of these actors in administrative law? Is there a need for administrative law reform to address the issues raised by contracting out? This is a topic 

of considerable relevance at the moment, and it will only become more important 

over time. The second area of research relates to the impact of the Small Business Regulatory Enforcement Fairness Act (SBREFA). In 1980, Congress enacted the Regulatory Flexibility Act (RFA), mandating that federal agencies consider the impact of 

regulatory proposals on small entities. The RFA was strengthened in 1996 by the 

enactment of the SBREFA. In the context of rulemaking, SBREFA grants small 

businesses the opportunity to see rules at a very early stage, before they are even 

proposed. While this seems to be a fair accommodation in principle, there is at least 

some anecdotal evidence that the process may not be working well and may even 

be abused. While small businesses may ostensibly be fronting the early review of 

rules, big business may in fact be driving the process behind the scenes. Next year 

is the tenth anniversary of SBREFA and it is an appropriate time to examine its 

effectiveness. ACUS could inquire into SBREFA’s implementation and determine 

whether Congress’ intended purpose of assisting smaller entities is, in fact, being met. 

Finally, the third area where ACUS could direct further research is the reconciliation of the principles of administrative law with the imperatives of national security. Like other agencies, the various agencies within the Department of Homeland 

Security (DHS) undertake administrative processes and promulgate rules. However, 

unlike the other agencies, the DHS has not, perhaps understandably, been subject 

to commensurate scrutiny or cost-benefit analysis. How are the administrative law 

principles of transparency and accountability, fairness and effectiveness, to be reconciled with national security interests? Can the Administrative Procedure Act, 

which is now 60 years old, deal with contemporary matters of national security? 

These are not easy questions to answer but ACUS could provide a forum for their 

consideration. 

These are among the next generation of issues that ACUS might profitably explore, along with coordinating empirical study of how well the administrative state 

currently performs its functions. A small financial investment in ACUS could lead 

to significant cost savings down the road by directing Congress to high priority 

issues that are most in need of reform, illuminating opportunities where Congress 

can get the biggest bang for its proverbial buck, and directing Congress away from 

reform measures that may be unnecessary. 

This concludes my remarks. I would be happy to take any questions that you 

might have.

Mr. CANNON. Thank you. I just want you all to know that I’ve 

made all these arguments about funding ACUS, and I think we’re making progress there. We’ll be submitting written questions that 

I think will take the bulk of what I would otherwise do. I’d like to 


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take just a few moments and talk about where I’d like to see us 

go. 

You know, the reason we—the reason the only program, or the 

only program that was actually defunded was ACUS is because 

people didn’t understand it. They didn’t share our heartbeat over 

what it does. And so we are spending some time trying to raise the 

level of interest in that. 

And it was a bipartisan elimination. I mean, nobody knew much 

about what it did except those people who really understood, and 

they were not persuasive enough. 

And so one of the things that I hope, as we proceed in this 

project, as I mentioned earlier, that we have, is we try and reach 

out to other interest groups. And there are a lot of people out there 

who care a lot about it if they thought there was a way to make 

some progress. And so I think it’s our duty, as part of the project, 

to help look at those groups out there and draw them in. You do 

that by contacting them and by sending them an e-mail with a link 

and having them pop the link and then having a large corporation 

task a staff attorney or someone to follow the progress. 

And most corporations are spending a great deal of money on 

these issues. And as you tap into them and tap into the interest 

groups like the small business groups and the Chamber of Commerce and others, you end up with the ability to reach out and actually get people engaged in the process. And that means the process will be better, but it also means that we may actually be able 

to get something done. 

And so, I would, since we are all going to be working together 

on this over a long period of time, if I might suggest, you have 

WIKIs and blogs, you have Web sites and e-mails, and we need to 

be using sort of these tools that are out there to promote what we 

are doing. And, in fact, we need to do something, as you said, Ms. 

Freeman, about changing the name, because APA puts you to sleep 

if you could remember what it stands for. But something like, ‘‘The 

Government power and you’’—that does touch people and it especially touches people who have deep pockets and who care about 

this stuff, but who have grown inured to the enormity of what’s 

happening to them partly because the issues have been partisan. 

If you’re talking about environmental issues, you have people 

who are pro and con before the issue is on the table. And so you 

can’t say what is the process that leads us to an appropriate conclusion. And there are some people who will actually say that they 

specifically view the world that way. They don’t want it to be 

touched because walking on public lands or stopping categorical exclusions for drilling, those things are good, regardless of the cost 

and the outcome in a world where technology has changed. 

We just had over the weekend a news report that the local gas 

company has been awarded a 20 percent increase in its costs and 

what people pay. And they met with me the day before that happened and said it was going to be 30 percent. So you—now you 

have a bunch of guys say 20 percent, how do we do it on 20 percent? And what they have to do is come up with more oil and gas. 

They have several oil wells that have been completed, but not 

ready to produce because they are waiting for a signature by a bureaucrat in a system. And at the same time they believe they 


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should get categorical exclusions which will allow them to drill 

enough wells between now and next November that prices could 

come down by 30 percent in November. And we are doing that in 

a context of people arguing at a level that is absolutely unrelated 

to either the production of more gas and, therefore, the lowering of 

costs or to the effectiveness of drilling when the technology is so 

radically different that we are not regulating the same thing that 

we produce the rules for. 

So this is a remarkably important time, and we are going to 

produce more oil and gas. The question is, do we do it thoughtfully? 

And what we do as a group here is likely to be a significant portion 

of that. 

So I am going to turn the time over to my Ranking Member in 

a moment, but I just want to thank you all for being here and tell 

you that this, I think, is about as important a thing as can be done 

in Government because we can regulate much more efficiently. We 

can accomplish our objectives without the kind of costs that we are 

imposing, and human beings and other species that share our 

world can enjoy it to a much better degree if we are faithful and 

articulate about what our goals are and how we achieve them than 

if we just live with an old structure that is in many ways probably 

not serving us very well. 

So I yield back my time. And Mr. Watt. 

Mr. WATT. Thank you, Mr. Chairman. I couldn’t help but have 

my mind wonder at one point during this exciting testimony and 

your exciting response to the testimony, that a new stenographer 

came in the middle and she’s probably wondering what in the 

world is a WIKI. You ought to at least try to explain that to her 

so she can get it in the record. I mean, there was a different reporter here. 

Mr. CANNON. W-I-K-I. And Google it, G-O-O-G-L-E. I am sure 

you know what that is. 

Mr. WATT. Don’t make it worse. 

Mr. CANNON. It’ll be great. 

Mr. WATT. She was having enough trouble following your Utah 

accent without all these extraneous words. 

Let me start by asking a global question, and then I want to just 

go down and ask each one of you a question or two that got 

sparked by your exciting testimony. 

Global question: I take it that all of you would agree that this 

project in which you all are engaged is not a satisfactory substitute 

for ACUS. 

Ms. FREEMAN. As somebody conducting one of the few studies ongoing, let me say, absolutely not. As much as I appreciate the enormous help of the Congressional Research Service and their tremendous ability to help me do this, the truth is, it is very ad hoc. It 

depends on what a few people are interested in. This is not a comprehensive, well-thought-out exercise by those of us who are picking it up on the go. We need a body to say, here are the priorities. 

Mr. WATT. I thought that would be the—I guess that’s kind of 

the uniform response of all of the witnesses. 

Mr. LUBBERS. I think the results of the project could provide 

some good raw data and empirical information that an ACUS could 

use. 


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Mr. WATT. I have got a question, a specific question, about that 

that I’ll come back to in a little bit. In light of your response, I 

think I will take a more frontal assault on the Contract with America that I took——

Mr. CANNON. It preceded me. 

Mr. WATT. That, I took a gentle swipe at in my opening statement. 

I think, actually, doing away with ACUS is probably the most 

dramatic demonstration that the Contract was political, rather 

than practical. I mean, I just can’t think of a more dramatic example of it, so I’ll let that go. 

All right, I’m going on to my list of questions, and I’ll just go 

down the questions, and maybe if you’ve got a thought or two about 

these questions that you want to do quickly, for each one of you—

but it might be helpful to have you be more thoughtful and address 

these questions maybe as a follow-up to today’s hearing because 

some of them are kind of more long term. 

Mr. Rosenberg, the question I had of you is, how systematic is 

the outreach in the project? Has the project itself become more of 

an inside game for inside players? 

In my role as Chair of the Congressional Black Caucus, one of 

the things I’m always concerned about is whether there is systematic or any effort to reach out to historically black colleges and universities, for example, to do any of these research projects. It is refreshing to see one female here on the panel, but I’m always wondering whether there is any diversity going on in any of this research or whether it is all an inside game. That was my question 

to Mr. Rosenberg. 

Mr. Mihm, you listed a series of things that you refer to as areas 

in which congressional action may be required—weaknesses, transparency, technology, impact. I might suggest that some more specific examples of that, of those areas, might be worthwhile to give 

us a context. 

Maybe that’s included in your testimony, your written testimony; 

maybe it’s not. As the Chairman said, one of the reasons you all 

went on and on and on beyond the 5 minutes was because probably 

neither one of us has read, had the opportunity to read your testimony. 

Mr. Lubbers, a more concise statement of how ACUS has been 

missed and in what areas. You got to that issue, kind of indirectly 

by listing a bunch of things that the new ACUS might want to 

focus on, but there are probably some very dramatic examples that 

could be pointed to within the last 10 years of mistakes or things 

that would not have happened had ACUS been in existence, or possibly would not have happened had ACUS not been—it seems to 

me that that would be a good laundry list of things. 

I’m trying to build a case for ACUS. I forgot to give you my 

mantra at the outset, ACUS ASAP. What about that? You like 

that? 

Mr. CANNON. We’re going to have to act like Senators and then 

figure out something that has meaning for that acronym. 

Mr. WATT. ACUS ASAP. That was kind of my overall mantra. I 

forgot to give it to you at the beginning. Okay, I’m almost through. 


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I absolutely agree with Professor Freeman that we don’t have a 

clue of whether our Federal Government agencies and/or the rules 

and regulations they promulgate are being effective or not, or how 

they could be improved. And I want to second that emotion. 

I am especially interested in some of the things that you mentioned about the next generation of ACUS privatization, and contracting out is a major, major concern of ours when we start contracting out fighting a war. And there is some excellent research 

out there about how much of the Iraq war is being contracted out 

to private contractors, security providers, the whole effort in Iraq 

which—none of which is subject or little of which—is subject to any 

kind of governmental oversight or administrative oversight or rules 

or regulations. And then when some of these private contractors 

get captured or taken as prisoners, we don’t even know whether we 

have the responsibility to send the military in to rescue them or 

whether that is a private obligation. 

Even down to that level, when we start contracting out the interrogation of prisoners—this has been a major issue of ours domestically for years. When it comes to privatization of prisons, whether 

the private contractors are subject to the same set of responsibilities that the Government was subject to is a major issue, and I 

hope you’ll elaborate on that. 

And then, of course, the issue that I raised in my opening statement, of reconciling these imperatives of privacy and transparency 

with national security is a major issue that I think we’re just missing the boat on without ACUS doing systematic research. Not that 

the episodic research that you all are doing under the project is not 

good, but this needs to be systematic; and I want to join the Chairman of the Subcommittee in saying, it may not be exciting, but it 

is absolutely critically necessary. 

Might not be politically something that people want to spend 

money on, but when we start—what is it my mama used to say 

about saving, spending a little bit now to save more, penny wise 

and pound foolish, I think was the phrase she used. It is a dramatic demonstration that a lot of these suggestions that were implemented in the aftermath of the Contract with America have 

been just penny wise and pound foolish, in my opinion. 

So I won’t get off on that. I didn’t mean to politicize it. 

Mr. CANNON. Would the gentleman yield? 

Mr. WATT. I’m going to yield back. 

Mr. CANNON. Well, don’t yield back. 

Mr. WATT. Sure, I yield. 

Mr. CANNON. You’ve asked several questions of the individuals. 

Can I just add another question to that? And probably, Professor 

Lubbers, you are best equipped, but others may want to comment. 

Is it possible for ACUS to operate with private funding? I am just 

thinking, due to the legislation, it’s a Government agency almost, 

or it’s a sort of private thing. I don’t think it’s a not-for-profit, but 

there are many agency groups out there, I think, who would like 

to see it operate, and I don’t know that we’re going to be able to 

do much this year. 

Mr. WATT. I’ve got an idea for you. 

Mr. CANNON. Yield back. 


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Mr. WATT. I’ve got an idea for you. It’ll cut down on regulations 

if you just have each agency’s budget assessed when they do a regulation or a rule to fund ACUS. 

Mr. CANNON. As a Republican, I agree with that. 

Mr. WATT. Get the money out of the various agencies. 

Mr. CANNON. I get the sense you’re trying to revive a new Contract with America from the Republican point of view. I got elected 

during the period of reaction to the Contract with America. I was 

only one of two Republicans who beat incumbent Democrats, 

whereas I think we lost eight or——

Mr. WATT. Not enough. 

Mr. CANNON. Thank heavens. 

Anyway, I yield back to you; and I think you have asked your 

questions. 

Mr. WATT. If there are any quick responses to any of the things 

I have raised, but I, I mean, maybe some more thoughtful, longerterm written responses would be just as well. So go right ahead if 

you all want to comment. 

Mr. ROSENBERG. My wife last night asked me what in the world 

I was doing working so late, and I explained to her, you know, 

what we were doing, and about ACUS and its reauthorization with 

no funds. She looked at me and said why didn’t they do the Lance 

Armstrong solution. There must be enough wonks out there who 

will buy a bracelet, red, white and blue, you know, for a buck each. 

Maybe there are three million of them out there, we can get it 

going into next term. 

With regard to your question——

Mr. WATT. Is this a policy wonks bracelet? Is that what you’re 

advocating for? 

Mr. ROSENBERG. Yes. A policy wonks bracelet. There should be 

three million of them out there for at least 1 year’s work. 

These are just preliminary thoughts. What is the selection process? It isn’t systematic. We are on the team and are familiar with 

various administrative law issues, administrative practice issues; 

and the way we know them is reading other—what people have 

done, things that have been published by people wherever they are. 

One of the things that I was hoping is that this hearing would 

get some notice out there in the industry, where the wonks would 

say, I have an idea, I’m willing to do that, I have the resources, 

or whatever it may be, and would come to us. We’re trying to find 

people in various areas and encourage them. 

The difficulty, as Professor Freeman has noted, is that whatever 

the university, graduate school, law school, whatever it is, unless 

there is some funding, they’re not going to be able to do it. It takes 

time to do some of these things. 

Not all these projects that we’re looking at by the way, are mega 

studies; some of them are mini studies. One of them involves consent decrees. Your Committee is dealing with a big, broad issue on 

consent decrees. But one thing it doesn’t deal with is a problem 

that—or at least it’s an anecdotal thing that I have come across—

is that there’s been a trend in the last 5 to 7 years of agencies 

whose rules are being challenged, are entering into consent decrees 

about those rules and changing the substantive thrusts of those 

rules. And under the law today, the only way those rules can then 


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be changed is by Congress passing a law. It’s set in stone, and it 

is undermining public participation. 

Now, that is a mini study. We want to—what I’m trying to do 

is get people who have written about consent decrees in this area 

to look at them very carefully and say, is this a real problem, is 

this a trend in the way the administrative agencies are evading 

public participation and being able to change the rules themselves? 

And once that is done, maybe there can be a solution with regard 

to—well, H.R. 1229, the Federal Consent Decree Fairness Act, tries 

to do it by limiting the duration of any consent decree. I don’t think 

that will particularly work with this, but that would be one part 

of the solution. 

So they have a mini thing. And what you do is, you try to find 

somebody out there who has written about consent decrees and 

knows about this process and gets it, wherever they are, you know, 

whatever it is. We will try to make this as diverse as possible, but 

we have—it’s difficult enough finding people like Jody Freeman, 

you know, to do this kind of thing. 

Mr. WATT. Are you all funding—who’s funding even the basic 

part of this? Are there grants? 

Ms. FREEMAN. Harvard Law School. 

Mr. WATT. Harvard Law School has taken your project completely. So you’ve got to go ask somebody to do something for free. 

Mr. ROSENBERG. Yes. But there is a partial funding of this public 

participation study at Texas A&M. It’s coming from CRS, which 

has links with about four or five graduate schools, universities, 

where they have, where—this is a unique funding thing. Most of 

them are to help CRS do various studies. This is the first one in 

which we are aiding a Committee and funding, you know, the eight 

graduate students, you know, to do this massive study of——

Mr. WATT. But think about what we’re saying here. That’s almost guaranteeing a lack of diversity because the people who are 

less—the institutions that are least likely to be able to pick up that 

kind of economic burden are the ones that are just not going to. I 

mean, an HBCU is not going to be able to do that. Harvard can; 

a small university can’t. A big university may be able to, if, you 

know, so you’re almost guaranteeing a lack of diversity through 

this project, I think. 

Anyway——

Ms. FREEMAN. And, Mr. Watt, the problem’s even worse because 

it is very unstable and unreliable, so even if you can pick up some 

funding for a little while, it gets cut off when you’re mid-project. 

Mr. MIHM. Mr. Watt, in the question that you directed to me, I’m 

going to take you up on your kind offer to provide a more complete 

and perhaps thoughtful answer for the record. But at least three 

things right off the top in terms of statutory changes that Congress 

may want to consider. 

One, as I mentioned earlier, was revisiting the ‘‘significant economic impact on a substantial number of small entities’’ and providing—this isn’t a regulatory flexibility act, providing either some 

additional guidance to agencies on what that means, or more likely, 

I would think, requiring some consistent guidance that be provided 

on that so that we can get comparability across agencies; or when 


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it’s not comparable, make sure that it’s done for known reasons, 

rather than just kind of idiosyncratic reasons. 

The second is that I think that we’ve published in the past that 

we think that Congress ought to revisit the Inflation Adjustment 

Act which allows agencies to increase their civil penalties to capture inflation. There’ve been problems with that both in kind of the 

technical aspects, some technical aspects of that, as well again as 

the need for some cross-cutting guidance across Government. We 

found that as a result of that lack of guidance that there was some 

inconsistency in how agencies work. 

Mr. WATT. Are they required to increase them? Or some of them 

are doing it and some of them are not? 

Mr. MIHM. They are required, and some are doing it and some 

are not. 

Mr. WATT. But not consistently in the way they do it, is what you 

are saying? 

Mr. MIHM. Right. Yes, sir. 

And then the third and perhaps this is actually building on an 

ACUS recommendation to go back and look at APA, and in particular with, you know—APA, as you know, allows for good cause 

an agency not to have a notice of proposed rulemaking. That goodcause definition has been expanded and stretched and is perhaps 

at the screaming point in some places. 

Some clarified guidance on that or expectations from Congress, 

I think would also be helpful. But again, we will provide a more 

complete list for you. 

Mr. LUBBERS. Mr. Watt, it is a little hard to come up with dramatic examples of things that might not have happened if ACUS 

were there. It’s a little bit like proving a negative. And ACUS did 

not have any power, per se. It was a recommendatory agency. But 

let me try to give you a few thoughts that occurred to me. 

For example, the Department of Homeland Security, when that 

was created, a lot of agencies were brought together and there were 

some organizational issues that I think could have benefited from 

ACUS’s consideration. Don’t forget, ACUS was a large body of experts who were serving as volunteers, and it brought together people from all sides of the political spectrum. So I think one benefit 

of ACUS was that it reduced the partisanship that we see in Washington these days. So you had public interest groups from the left 

and the right talking to each other and Government people talking 

to private lawyers about some of these problems. 

Another issue that was sort of partisan was the midnight regulation issue. When the Clinton administration went out and the Bush 

administration came in, there were lots of crises about regulations 

that were issued at the end of the Administration and then withdrawn or delayed by the Bush administration. I think that is an 

issue that the Administrative Conference could have worked on. 

All of the issues regarding electronic rulemaking that I have 

mentioned I think would have benefited from scholarship and a coordinated set of studies. The Administrative Law Judge hiring program was frozen for 6 years at the Office of Personnel Management. Agencies could not hire new ALJs from the register of ALJs 

because of litigation over controversy concerning the Veterans PrefVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 00766 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230

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erence Act, and I think the Administrative Conference could have 

helped to solve that problem a lot earlier than 6 years. 

The asbestos compensation issue, which I know Chairman Cannon is very concerned about and this Committee is concerned 

about, is something that I think could have benefited from Administrative Conference review. Maybe an administrative forum could 

have been developed to help resolve that issue. 

Sarbanes-Oxley is another issue that receives a lot of concern. 

And I think that law was necessary because of some failings of selfregulatory organizations in the securities and accounting area. So 

that is another thing I think we could have worked on. 

Waivers and exceptions, we have seen that with respect to 

Katrina. People didn’t know whether or how waivers and exceptions should be granted. I think that was on our list back in 1995, 

and I think we would have gotten around to that before 2005. So 

those are some issues. 

Now, I just—I want to also respond to Chairman Cannon’s question about private funding. The Administrative Conference statute, 

of course, is very broad and it does permit the agency to accept private gifts, private donations, volunteer services, dollar-a-year people, and anybody who wants to work, agency transfers of funds. 

ACUS has a very flexible statute, and it would permit all these 

sorts of funding—sources of funding to be used at ACUS. Whether 

you could come up with a completely private analog of ACUS that 

would be as effective, I have some doubts. 

And let me just mention one other thing while I have the microphone which is, I’m working on an advisory committee, National 

Academy of Sciences official advisory committee now, which is concerning one slice of the Social Security program. And this is the 

part of the program that has to do with beneficiaries who cannot 

handle the benefits. Because of their disability, or they’re drug addicts or something like that, they have to have a representative 

payee to get these checks. And not surprisingly, there are some 

abuses in this area. 

So Congress has funded the Social Security Administration to 

then fund the National Academy of Sciences to study this issue. 

And this study, alone, I think, was funded at an $8 million level. 

And our Committee just received bids from Beltway organizations 

to do a nationwide survey of about 4,000 representatives and beneficiaries; and that’s going to be, I think, about a $5 million study. 

So that’s just one slice of one obviously important program that’s 

being funded for $8 million. And we’re talking about a $3 million 

budget for the Administrative Conference. 

Ms. FREEMAN. I just have a couple of brief remarks in response 

to the questions and concerns. 

First, these very potentially politically contentious issues around 

contracting out, privatization, and harmonizing national security 

and administrative law procedures, the great value ACUS can aid 

here is obviously not solving this problem, not making the hard 

choices. That’s for Congress to make, but steering a course through 

it by at least beginning to explain what kinds of contracting are not 

so problematic, what kinds of contracting are more problematic, 

what issues get raised, what rules apply. 


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You know, procurement law. There is an elaborate set of rules 

and regulations because of procurement. 

But then there is an entirely different arena of contracting where 

almost nothing governs. And it’s that kind of explaining what’s 

going on, dissecting what the issues are, proposing potential solutions that can be so useful when delivered to Congress, and you 

can decide what you wish to do. But that function is being lost 

here. 

And I think, too, with the—the same thing with the contentious 

dimensions of the national security administrative law conflict 

here, the question is, what are the options and what are the perceived benefits, what are the perceived costs, and how ought we to 

think about it? That’s a very important function that you want to 

put in the hands of a body that has this great reputation for being 

quite bipartisan and quite professional. 

And the final thing I want to mention that goes back to the mention of consent decrees and the problems of what I would call backdoor rulemaking, whenever you tighten up discretion in one area, 

the funny thing with administrative agencies is it pops out somewhere else. And there is a relationship between additional oversight mechanisms from both Congress and the executive and the 

great search within agencies for areas where they can operate more 

freely. 

So it’s something ACUS might look at; that is, the relationship 

between adding more analytic requirements and agencies feeling 

the need to go elsewhere, that is, operate through consent decrees, 

use exceptions that they can drive a truck through. These are related. And ACUS can look at that in a more comprehensive way 

than somebody who does a piecemeal study, part by part. 

And the very last thing, the problem, the PR problem with administrative law, this is a failure—I hate to admit this—of law 

schools. It’s a failure of policy schools, it’s a failure of public administration schools, because we have not developed a robust capacity 

to talk about how Government’s working. 

We talk about Congress plenty and we talk about judges a lot. 

But we do not focus on the heart and soul of the Federal Government, and that is the rulemaking and adjudicatory processes. And 

ACUS can be a spark to reignite interest in this important topic. 

Mr. WATT. Mr. Chairman, I’ve gone way over my time. I’ll just 

close by saying, ACUS ASAP. Yield back. 

Mr. CANNON. And that ‘‘P’’ probably needs to stand for private 

funding or some other source of funding, because we need to talk 

about it. Thank you very much, Mr. Watt. 

And we want to thank the panel. It is very insightful. We’ve, I 

think, learned a lot here today. I have. And we look forward to 

working with you over a long term on this, and maybe we can come 

up with some ways of actually getting people to realize that 10 percent of the economy is a lot more than whatever judges do or that 

these elections for Congress aren’t really very important in that 

context either. 

Thank you a lot. We appreciate it. And see you soon. 

[Whereupon, at 11:32 a.m., the Subcommittee was adjourned.] 


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RESPONSES TO ADDITIONAL QUESTIONS FROM J. CHRISTOPHER MIHM, MANAGING DIRECTOR OF STRATEGIC ISSUES, UNITED STATES GOVERNMENT ACCOUNTABILITY OFFICE


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RESPONSES TO ADDITIONAL QUESTIONS FROM JEFFREY S. LUBBERS, FELLOW IN LAW

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Æ


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U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001

93–774 PDF 2004

REAUTHORIZATION OF THE ADMINISTRATIVE

CONFERENCE OF THE UNITED STATES

HEARING BEFORE THE

SUBCOMMITTEE ON 

COMMERCIAL AND ADMINISTRATIVE LAW OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

MAY 20 AND JUNE 24, 2004

Serial No. 109

Printed for the use of the Committee on the Judiciary

(

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


052004.AAB
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COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

MELISSA A. HART, Pennsylvania 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

JOHN R. CARTER, Texas 

TOM FEENEY, Florida 

MARSHA BLACKBURN, Tennessee 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California

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 

JEFF FLAKE, Arizona 

JOHN R. CARTER, Texas 

MARSHA BLACKBURN, Tennessee 

STEVE CHABOT, Ohio 

TOM FEENEY, Florida 

MELVIN L. WATT, North Carolina 

JERROLD NADLER, New York 

TAMMY BALDWIN, Wisconsin 

WILLIAM D. DELAHUNT, Massachusetts 

ANTHONY D. WEINER, New York

RAYMOND V. SMIETANKA, Chief Counsel 

SUSAN A. JENSEN, Counsel 

DIANE K. TAYLOR, Counsel 

JAMES DALEY, Full Committee Counsel 

STEPHANIE MOORE, Minority Counsel 


052004.AAC
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C O N T E N T S 

HEARING DATES 

Page 

May 20, 2004

REAUTHORIZATION OF THE ADMINISTRATIVE CONFERENCE OF THE UNITED

STATES ............................................................................................................... 1

June 24, 2004 WHY IS THERE A NEED TO REAUTHORIZE THE CONFERENCE? ........................... 29

OPENING STATEMENT 

MAY 20, 2004

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 ...................................................................................... 4

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

of North Carolina, and Chairman, Subcommittee on Crime, Terrorism, and 

Homeland Security ............................................................................................... 8

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

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 8

JUNE 24, 2004

The Honorable Chris Cannon, a Representative in Congress From the State 

of Utah, and Chairman, Subcommittee on Commercial and Administrative 

Law ........................................................................................................................ 29 The Honorable Melvin L. Watt, a Representative in Congress From the State 

of North Carolina, and Ranking Member, Subcommittee on Commercial 

and Administrative Law ...................................................................................... 31

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

of North Carolina, and Chairman, Subcommittee on Crime, Terrorism, and 

Homeland Security ............................................................................................... 38

The Honorable Tom Feeney, a Representative in Congress From the State 

of Florida ............................................................................................................... 38

WITNESSES 

MAY 20, 2004

The Honorable Antonin Scalia, Associate Justice, Supreme Court of the 

United States 

Oral Testimony ..................................................................................................... 10

Prepared Statement ............................................................................................. 11

The Honorable Stephen G. Breyer, Associate Justice, Supreme Court of the 

United States 

Oral Testimony ..................................................................................................... 13

Prepared Statement ............................................................................................. 15


052004.AAD
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IV

JUNE 24, 2004

C. Boyden Gray, Esq., Wilmer Cutler Pickering Hale and Dorr LLP, on 

behalf of the American Bar Association 

Oral Testimony ..................................................................................................... 59

Prepared Statement ............................................................................................. 60

Professor Gary J. Edles, Fellow in Administrative Law, American University 

Washington College of Law, and General Counsel, Administrative Conference of the United States (1987–1995) 

Oral Testimony ..................................................................................................... 63

Prepared Statement ............................................................................................. 64

Professor Sallyanne Payton, William W. Cook Professor of Law, the University of Michigan Law School, on behalf of the Executive Organization and 

Management Standing Panel of the National Academy of Public Administration 

Oral Testimony ..................................................................................................... 71

Prepared Statement ............................................................................................. 72

Professor Philip J. Harter, Earl F. Nelson Professor of Law, Center for the 

Study of Dispute Resolution, University of Missouri Law School-Columbia 

School of Law 

Oral Testimony ..................................................................................................... 75

Prepared Statement ............................................................................................. 77

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

MAY 20, 2004

Prepared Statement of the Honorable Chris Cannon, a Representative in 

Congress From the State of Utah, and Chairman, Subcommittee on Commercial and Administrative Law ........................................................................ 3

Letter from William Funk, Chair, the American Bar Association Section of 

Administrative Law and Regulatory Practices .................................................. 5

JUNE 24, 2004

Prepared Statement of the Honorable Chris Cannon, a Representative in 

Congress From the State of Utah, and Chairman, Subcommittee on Commercial and Administrative Law ........................................................................ 30

Letter from Professor Richard Chernick, Esq., Chairman, American Bar Association Section of Dispute Resolution ................................................................. 33

Letter from Professor Paul R. Verkuil, Benjamin N. Cardozo School of Law, 

Yeshiva University ............................................................................................... 36

Prepared Statement of Professor Sally Katzen, The University of Michigan 

Law School ............................................................................................................ 38

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

JUNE 24, 2004

Response to post-hearing questions from C. Boyden Gray .................................. 91

Response to post-hearing questions from Professor Gary J. Edles ...................... 97

Response to post-hearing questions from Professor Sallyanne Payton ............... 114

Response to post-hearing questions from Professor Philip J. Harter .................. 121

Letter from Michael Herz, Professor of Law and Co-Director, and David 

Rudenstine, Dean and Co-Director, Floersheimer Center of the Benjamin 

N. Cardozo School of Law, Yeshiva University ................................................. 125


052004.AAE
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REAUTHORIZATION OF THE ADMINISTRATIVE 

CONFERENCE OF THE UNITED STATES 

THURSDAY, MAY 20, 2004

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COMMERCIAL

AND ADMINISTRATIVE LAW, COMMITTEE ON THE JUDICIARY, Washington, DC.

The Subcommittee met, pursuant to notice, at 2:06 p.m., in Room 

2141, Rayburn House Office Building, Hon. Chris Cannon (Chair of 

the Subcommittee) presiding. 

Mr. CANNON. The Subcommittee will please come to order. I expect we will have several other Members who told us they would 

like to join us will join us soon. 

It is indeed an honor and a pleasure to welcome to our Subcommittee today two of our Nation’s most esteemed jurists. I am 

informed that it’s fairly rare to have a Justice from the Supreme 

Court, let alone two Justices, testify before Congress, particularly 

with respect to matters not pertinent to the judiciary’s funding or 

operations. According to the Congressional Research Service, the 

last time a Supreme Court Justice testified before the House Judiciary Committee was in May 1971, when Associate Justice Potter 

Stewart discussed legislation concerning the Federal Judicial Center and the Administrative Office of the United States. The presence of Justices Breyer and Scalia, I believe, underscores the significance of today’s hearing, which focuses on the value of reauthorizing the Administrative Conference of the United States. 

For those of you who are not familiar with the work and accomplishments of the Conference, let me briefly explain. 

Over the course of its 28-year existence, the Conference issued 

more than 200 recommendations, some of which were Governmentwide and others were agency-specific. It issued a series of recommendations eliminating a variety of technical impediments to judicial review of agency actions and encouraging less costly consensual alternatives to litigation. 

The fruits of these efforts included enactment of the Administrative Dispute Resolution Act of 1990, which established a framework 

for the use of ADR. In addition to this legislation, ACUS served as 

the key implementing agency for the Negotiated Rulemaking Act, 

the Equal Access to Justice Act, the Congressional Accountability 

Act, and the Magnusson-Moss Warranty Federal Trade Commission Improvement Act. 

The Conference also made recommendations regarding implementation of the Congressional Accountability Act and played a 


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key role in the Clinton administration’s National Performance Review with respect to improving the regulatory systems. Further, 

ACUS served as a resource for Members of Congress, congressional 

Committees, the Internal Revenue Service, Department of Transportation, and the Federal Trade Commission. 

With respect to specific agencies, the Conference, for example, 

during the 1970’s undertook an exhaustive study of the procedures 

of a single agency, the Internal Revenue Service, which resulted in 

72 proposals concerning the confidentiality of taxpayer information, 

IRS settlement procedures, and the handling of citizen complaints, 

among other matters. The IRS ultimately adopted 58 of these recommendations. 

Some may ask: Why should we reconsider—or consider reauthorizing the agency at this time or the Conference at this time? We’ve 

gotten along without the Conference over the last 8 years—I might 

say, not very well. How can we justify re-establishing the agency 

at the attendant expenditures, especially in a fiscal belt-tightening 

environment? The answer, at least to me, is obvious. Just this 

week, Congress passed the Paperwork and Regulatory Improvements Act by an overwhelming bipartisan vote of 373–54. This legislation is intended to assist Congress in its review of final agency 

rules under the Congressional Review Act and to improve the quality and quantity of information provided in the annual regulatory 

accounting statement prepared by the Office of Management and 

Budget. 

While a good bill, problems with the current administrative law 

environment are much greater than either the Congress or OMB 

by itself, or even jointly, can address. According to the Congressional Research Service, there are growing patterns of evasion 

among agencies with respect to notice and comment requirements. 

An increasing number of regulations are being successfully challenged in courts. An informal study by CRS indicates that 51 percent of these rules were struck down by the courts. Needless litigation hurts everyone. It slows the rulemaking process, encourages 

agencies to try to circumvent public comment requirements, and 

costs taxpayers millions of dollars, a lot more than the budget that 

we’re proposing here. 

Another serious area of concern is the need to have a coherent 

approach among the agencies with respect to emerging issues and 

technologies. These areas include issues dealing with privacy, national security, public participation in the Internet, and the Freedom of Information Act. There are also concerns about the need to 

have peer review and to have regulations based on sound science. 

Our Nation’s people and business communities depend upon Federal agencies to promote scientific research and to develop sciencebased policies that protect the Nation’s health and welfare. Integral 

to the Federal regulatory process is the need to assess the safety, 

public health, and environmental impact of proposed regulations. 

Regulations lacking sound scientific support can present serious 

safety and health consequences, as well as cause private industry 

to incur unnecessary and burdensome expenses to comply with 

such regulations. Restoring the Conference in some form, from my 

perspective, would provide a cost-effective, highly valuable solution 

to these problems. It is my hope that today’s hearing will be the 


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first step toward establishing a strong evidentiary base to support 

the reauthorization of the Conference. 

[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

The Subcommittee will please come to order. 

It is indeed an honor as well as a pleasure to welcome to our Subcommittee two 

of our nation’s most esteemed jurists. I am informed that it is a fairly rare event 

to have a Justice of the Supreme Court—let alone two Justices—testify before Congress, particularly with respect to matters not directly pertinent to the Judiciary’s funding or operations. According to the Congressional Research Service, the last 

time that a Supreme Court Justice testified before the House Judiciary Committee 

was in May of 1971, when Associate Justice Potter Stewart discussed legislation 

concerning the Federal Judicial Center and the Administrative Office of the United 

States. 

The presence of Justices Breyer and Scalia—I believe—underscores the significance of today’s hearing, which focuses on the value of reauthorizing the Administrative Conference of the United States. For those of you who are not familiar with 

the work and accomplishments of the Conference, let me briefly explain. 

Over the course of its 28-year existence, the Conference issued more than 200 recommendations—some of which were government-wide and others that were agencyspecific. It issued a series of recommendations eliminating a variety of technical impediments to the judicial review of agency action and encouraging less costly consensual alternatives to litigation. The fruits of these efforts include the enactment of 

the Administrative Dispute Resolution Act in 1990, which established a framework 

for the use of ADR. 

In addition to this legislation, ACUS served as the key implementing agency for 

the Negotiated Rulemaking Act, the Equal Access to Justice Act, the Congressional 

Accountability Act, and the Magnusson-Moss Warranty-Federal Trade Commission 

Improvement Act. The Conference also made recommendations regarding implementation of the Congressional Accountability Act and played a key role in the Clinton 

Administration’s National Performance Review with respect to improving regulatory 

systems. Further, ACUS served as a resource for Members of Congress, Congressional Committees, the Internal Revenue Service, Department of Transportation, 

and the Federal Trade Commission. 

With respect to specific agencies, the Conference, for example, during the 1970s 

undertook an exhaustive study of the procedures of a single agency—the Internal 

Revenue Service—which resulted in 72 proposals concerning the confidentiality of 

taxpayer information, IRS settlement procedures, and the handling of citizen complaints, among other matters. The IRS ultimately adopted 58 of these recommendations. 

Some may ask, ‘‘Why should we consider reauthorizing the Conference at this 

time?’’ We’ve gotten along without the Conference over the last eight years. How can 

we justify re-establishing an agency with the attendant expenditures especially in 

this belt-tightening environment?’’

The answer—at least to me—is obvious. Just this week, Congress passed the Paperwork and Regulatory Improvements Act by an overwhelming bipartisan vote of 

373 to 54. This legislation is intended to assist Congress in its review of final agency 

rules under the Congressional Review Act and to improve the quality and quantity 

of information provided in the annual regulatory accounting statement prepared by 

the Office of Management and Budget. While a good bill, problems with the current 

administrative law environment are much greater than either the Congress or OMB 

can singularly or even jointly address. 

According to the Congressional Research Service, there are growing patterns of 

evasion among agencies with respect to notice and comment requirements. An increasing number of regulations are being successfully challenged in the courts. An 

informal study by CRS indicates that 51% of these rules were struck down by the 

courts. Needless litigation hurts everyone—it slows the rulemaking process, encourages agencies to try to circumvent public comment requirements, and costs taxpayers millions of dollars. 

Another serious area of concern is the need to have a coherent approach among 

the agencies with respect to emerging issues and technologies. These areas include 

issues dealing with privacy, national security, public participation and the Internet, 

and the Freedom of Information Act. There are also concerns about the need to have 


052004.AAH
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4

peer review and to have regulations based on sound science. Our nation’s people and 

business communities depend upon federal agencies to promote scientific research 

and to develop science-based policies that protect the nation’s health and welfare. 

Integral to the federal regulatory process is the need to assess the safety, public 

health, and environmental impact of proposed regulations. Regulations lacking 

sound scientific support can present serious safety and health consequences as well 

as cause private industry to incur unnecessary and burdensome expenses to comply 

with such regulations. 

Restoring the Conference in some form—from my perspective—would provide a 

cost-effective, yet highly valuable solution to these problems. It is my hope that today’s hearing will the first step toward establishing a strong evidentiary basis of 

support for reauthorizing the Conference.

Mr. CANNON. I will now turn to my colleague, Mr. Watt, the distinguished Ranking Member of the Subcommittee, and ask him if 

he has opening remarks. 

Mr. WATT. Thank you, Mr. Chairman, and I will take a brief moment here just to thank the Chairman for convening today’s hearing and to welcome our distinguished guests, Justices Breyer and 

Scalia. 

As I indicated to the two Justices, this must be my Supreme 

Court day because we—a judicial caucus has now been started in 

the House, and its first visitor just before this meeting was convened was Justice Rehnquist, Chief Justice Rehnquist. So I think 

I’ve had more exposure, direct, personal exposure to Justices of the 

Supreme Court in one day than I have in my entire life, although 

I guess most people know I’ve had quite a bit of exposure, not personal but in other respects, with the Justices. So I’m delighted to 

be here and honored that you would share your insights on the 

topic of this hearing. 

The purpose of the hearing is to determine whether the state of 

administrative law and procedure warrant the reauthorization of 

the Administrative Conference of the United States. And as we 

know, the Administrative Conference was initially established in 

1964 as a permanent body to serve as the Federal Government’s 

in-house adviser on and coordinator of administrative procedural 

reform. It enjoyed bipartisan support for over 25 years and advised 

all three branches of Government before being terminated in 1996. 

Through the years, the Conference was a valuable resource providing information on the efficiency, adequacy, and fairness of the 

administrative procedures used by administrative agencies in carrying out their programs. This was a continuing responsibility and 

a continuing need, a need that, certainly in my opinion, has not 

ceased. So the topic before us today is one that has truly been nonpartisan, bipartisan, and I think we are blessed to have these two 

distinguished witnesses who—both of whom have personal experience with the Conference and its workings. And I understand also 

that the Chairman is expecting to have additional hearings to further information the Subcommittee and the Judiciary Committee 

about the need for the Administrative Conference, and I look forward to those hearings. 

Again, I welcome Justice Scalia and Justice Breyer, and I bring 

you the regards of your Chief Justice from the prior meeting. 

Thank you for being here. 

I yield back. 

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


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We would like to thank the Members who have joined us here: 

Mr. Coble from North Carolina; Mr. Chabot from Ohio; Mr. Watt, 

of course, from North Carolina, the Ranking Member; Mr. 

Delahunt from Massachusetts; Mr. Conyers from Michigan; and 

Mr. Scott from Virginia. We appreciate your attendance. 

We received a letter from the American Bar Association expressing its support for the reauthorization of the Administrative Conference, and without objection, we will submit that for inclusion in 

the record. So ordered. 

[The information referred to follows:]


052004.AAJ
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052004.AAK
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052004.AAL
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Mr. CANNON. Without objection, all Members may place their 

statements in the record at this point. Is there any objection? Hearing none, so ordered. 

Mr. Coble has asked for a quick 1-minute opening statement. 

We’re pleased to yield to the gentleman. 

Mr. COBLE. Mr. Chairman, I will not exceed 1 minute. I just 

want to reiterate what Mr. Watt said. I was with Mr. Watt, Mr. 

Scott, and other colleagues with the Chief Justice at a meeting 

today. We very much enjoyed having him here, and we very much 

appreciate you two Justices being with us. 

And, Mr. Chairman, I regret it but I’ve got another meeting 

going on now, so I may have to bolt before you conclude. But I 

thank you for having called this hearing. 

Mr. CANNON. I thank the gentleman, and we appreciate that 

many things are going on. 

Mr. Conyers, did you——

Mr. CONYERS. Mr. Chairman, could I be permitted a brief welcome to——

Mr. CANNON. Absolutely, Mr. Conyers. The Ranking Member of 

the full Committee, Mr. John Conyers from Michigan. 

Mr. CONYERS.—the two distinguished Justices. I’m so glad that 

you’re here. And I just wanted Justice Scalia to know that you look 

much more friendly in our setting than you do in your own. 

[Laughter.] 

Justice SCALIA. It’s the black robe. 

Mr. CONYERS. That might have something to do with it as well. 

I have also about several hundred questions which, regrettably, 

are not appropriate to this hearing. But you might want to extend 

to the Ranking senior Member of Judiciary an invitation to lunch 

or something else to examine my viewpoint and I yours. And we 

might reach a greater degree of comity than exists at the present 

moment. 

Thank you very much. 

Mr. CANNON. Thank you, Mr. Conyers. 

Mr. WATT. Could I ask the gentleman to yield just for a second? 

Mr. CONYERS. Of course. 

Mr. WATT. Just long enough to invite him to become a member 

of the newly established Judiciary Caucus, which had its first 

meeting today and met with Justice Rehnquist. So we’re trying to 

encourage comity and exchange across judiciary and——

Mr. CONYERS. Excellent idea. 

Mr. CANNON. Is this a bipartisan caucus? 

Mr. WATT. Yes, it is. It’s chaired, actually, by Representative 

Schiff and Representative Biggert, Republican and Democrat. 

Mr. CANNON. This is a caucus that goes beyond the Judiciary 

Committee itself? 

Mr. WATT. Yes. 

Mr. CANNON. Okay. Thank you. 

Without objection, the Chair will be authorized to declare recesses of the Subcommittee at any point. Hearing none, so ordered. 

I ask unanimous consent that Members have 5 legislative days 

to submit written statements for inclusion in today’s hearing 

record. So ordered. 


052004.AAM
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I also want to remind my colleagues of the obvious: Our witnesses are guided by Canon 3 of the Code of Conduct for United 

States Judges, which advises the judiciary to avoid making public 

comments with respect to the merits of pending or impending actions. We should endeavor to respect those constraints and limit 

our questions to the matter of our hearing. Adherence to this admonition will promote a greater dialogue, I think, at this point in 

the hearing and encourage the judiciary to participate in future 

hearings. 

Although I’m now pleased to introduce our witnesses for today, 

I’m sure that our colleagues are very well acquainted with their extensive accomplishments. 

Justice Antonin Scalia was nominated by President Ronald 

Reagan to the United States Court of Appeals for the District of 

Columbia Circuit and assumed the bench in 1982. Thereafter, he 

was nominated by President Reagan as Associate Justice of the 

United States Supreme Court and took the oath of office on September 26, 1986. 

Prior to his service in the judicial branch, Justice Scalia was general counsel for the Office of Telecommunications Policy in the Executive Office of the President from 1971 to 1972 and Assistant Attorney General in the Office of Legal Counsel at the Justice Department from 1974 to 1977. Between those two assignments, and 

of particular relevance to today’s hearing, Justice Scalia served as 

chairman of the Administrative Conference from 1972 to 1974. In 

addition, he chaired the American Bar Association Section of Administrative Law from 1982 to 1983. 

Our next witness is Justice Stephen Breyer. Justice Breyer 

began his illustrious legal career as a law clerk to Justice Arthur 

Goldberg during the Supreme Court’s 1964 term. He then served 

as special assistant to the head of the Justice Department’s Antitrust Division from 1965 to 1967. In 1973, Justice Breyer, having 

by this time worked for the judicial and executive branches of the 

Federal Government, now applied his talents to the legislative 

branch, where he worked as assistant Watergate special counsel in 

1973, special counsel to the Senate Judiciary Committee in 1975, 

and as the Committee’s chief counsel from 1979 to 1980. Thereafter, he was appointed Judge to the United States Court of Appeals for the First Circuit. President Clinton nominated him to the 

Supreme Court, and he took office in August 1994. Justice Breyer 

has authored numerous books and articles in the field of administrative law and regulation. 

I extend to each of you our 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, but 

we are not going to be very hard on that time frame. We are mostly 

interested in your comments and ideas. Accordingly, please feel 

free to summarize and highlight the salient points of testimony. 

You’ll note that we have a lighting system. It starts with green, 

goes to yellow, it stays yellow for a minute, and then we’ll sort of 

ignore it if it turns red. 

On the other hand, because we have a number of Members, we’ll 

try and keep the questioning to about 5 minutes using the same 


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system, and I’ll tend to tap the gavel when the 5 minutes runs, just 

so people are aware. I don’t think that we’ll have a problem with 

people going over time today. 

Justice Scalia, would you now proceed with your testimony? 

STATEMENT OF THE HONORABLE ANTONIN SCALIA, ASSOCIATE JUSTICE, SUPREME COURT OF THE UNITED STATES 

Justice SCALIA. I would be happy to. Mr. Chairman, Members of 

the Subcommittee, Congressman Conyers, I’m happy to be here 

today to provide information about the Administrative Conference. 

I obviously think it was a worthwhile organization and I guess 

demonstrated that belief by devoting 2 years of my life to it. 

I’ve described the organization of the Conference and some of its 

accomplishments, particularly during my tenure as Chairman, in 

my written testimony, and I will not go over that. 

I was Chairman from September 1972 until August 1974. Like 

the first two Chairmen, who were Professor Jerre Williams of the 

University of Texas Law School and Professor Roger Crampton of 

the University of Michigan Law School, and like my successor, Professor Robert Anthony of Cornell Law School, I was an academic 

and at that time on leave from the University of Virginia Law 

School. And, frankly, it was very much an academic job. I viewed 

it somewhat as returning from an online executive branch job, 

which I had had before then—I was general counsel of an agency—

to a job that mainly dealt with examining procedures within the 

executive branch, trying to line up consultants (generally academic 

consultants) who would be competent to assist our committees in 

studying those procedures, and then assisting the full Assembly in 

preparing recommendations. 

I found the Conference to be a unique combination of talents 

from the academic world, from within the executive branch—because many of the members of the Conference were representatives 

of the agencies, usually general counsels—and, thirdly, from the 

private bar, especially lawyers particularly familiar with administrative law. I did not know another organization that so effectively 

combined the best talent from each of those areas. 

I think the Conference’s ability to be effective hinged in part on 

the fact that we were a Government agency, and when we went to 

do a study at an agency, we were not stonewalled. Very often, a 

member of that agency was on our Assembly, and so the agency 

would cooperate in the study that we did. I think it’s much harder 

to do that kind of a study from the outside. The agencies tended 

to look upon us as essentially other people from the executive 

branch trying to make things better. 

I think we were successful in improving many procedures 

throughout the Government. Very little of it made headlines. Most 

of the changes had to be made agency by agency. Nobody who was 

not involved in the particular work of that particular subsection of 

that particular agency would even know that any changes had been 

made. But, all in all, I think the Conference was successful in improving the efficiency and the economy of the executive branch in 

many areas. 

Mr. Chairman, at the Court we really don’t let counsel blather 

on without being interrupted by questions for very long, so I feel 


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constrained to set the example myself. I will just refer you to my 

written testimony for the rest. I’m mainly here to answer your 

questions. 

[The prepared statement of Justice Scalia follows:]

PREPARED STATEMENT OF THE HONORABLE ANTONIN SCALIA

Mr. Chairman and Members of the Subcommittee: 

I am happy to accept your invitation to provide information concerning the Administrative Conference of the United States. I was the third Chairman of the Conference, and served in that capacity from September 1972 to August 1974. Like the 

first two Chairmen (Professor Jerre Williams of the University of Texas Law School, 

and Professor Roger Crampton of the University of Michigan Law School), and like 

my successor (Professor Robert Anthony of Cornell Law School), I was an academic—at that time on leave from the University of Virginia Law School. The Conference was then, and I believe continued to be, a unique combination of scholarship 

and practical know-how, of private-sector insights and career-government expertise. 

My testimony will generally pertain to the time period in which I served as Chairman, since I did not follow the Conference’s activities closely after moving on. 

At the outset, let me describe why the Conference was instituted and how it was 

organized. The Administrative Conference of the United States was established as 

a permanent independent federal agency by the Administrative Conference Act, 

signed by President Lyndon Johnson in 1964; and it was activated by the appointment of its first Chairman in January 1968. Its purpose was to identify the causes 

of inefficiency, delay, and unfairness in administrative proceedings affecting public 

rights, and to recommend improvements to the President, the agencies, the Congress, and the Courts. 

The Conference was composed of three parts: a Chairman, a Council, and an Assembly. The Chairman was appointed by the President, with the advice and consent 

of the Senate, for a term of five years. He was the Chief Executive of the Conference. He presided at plenary sessions of the Assembly and at Council meetings, 

and was the official spokesman for the Conference in relations with the President, 

the Congress, the Judiciary, the agencies, and the public. His most important responsibility, however, was to identify subjects appropriate for study by the Conference, and—if the relevant Committee of the Assembly was willing to pursue a 

particular subject—to line up an academic consultant qualified to assist in the research. It was also the Chairman’s responsibility to seek implementation of Conference recommendations—a task that required some diplomacy and charm, since 

needless to say the Conference had no enforcement powers over the agencies, much 

less over the President and Congress if the recommendations were directed to those 

quarters. The Chairman was served by a small permanent staff whose principal duties were to furnish administrative and research support to the Assembly of the 

Conference and its Committees, to follow and assist in the work of consultants, and 

to help the Chairman in securing implementation of recommendations. 

The Council of the Conference consisted of the Chairman and 10 other members 

who were appointed by the President for three-year terms, of whom not more than 

one-half could be drawn from Federal agencies. Its functions were similar to those 

of a corporate board of directors. It had the authority to call plenary sessions of the 

Conference and to fix their agenda, to recommend subjects for study, to receive and 

consider reports and recommendations before the Assembly considered them, and to 

exercise general budgetary and policy supervision. 

The Assembly of the Conference was composed of the entire membership, which 

by statute could not be less than 75 members nor more than 91. The Chairman and 

the other members of the Council accounted for 11 of this number; the remaining 

members fell into the following groups: First, the Act conferred membership upon 

the Chairman of each independent regulatory board or commission, or an individual 

designated by the board or commission. Second, the Act granted membership to the 

head of each Executive Department or other administrative agency (or his designee) 

named by the President. The final group consisted of the public members, appointed 

by the Chairman with the approval of the Council for two-year terms. These members, who had to comprise not less than one-third nor more than two-fifths of the 

total membership, were selected in such a manner as to provide broad representation of the views of private citizens of diverse experience. They were chosen from 

among members of the practicing bar, prominent scholars in the field of administrative law, and others specially qualified by knowledge and experience to deal with 

matters of federal administrative procedure. 


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The Assembly, which had ultimate authority over all activities of the Conference, 

operated much like a legislative body. It adopted By-laws establishing nine standing 

committees: (1) Agency Organization and Personnel, (2) Claims Adjudications, (3) 

Compliance and Enforcement Proceedings, (4) Grant and Benefit Programs, (5) Informal Action, (6) Judicial Review, (7) Licenses and Authorizations, (8) Ratemaking 

and Economic Regulation, and (9) Rulemaking and Public Information. These committees were the real work-horses of the Conference. They met periodically to direct 

and supervise research by academic consultants and by the Conference’s professional staff. On the basis of that research they framed proposals for consideration 

by the Assembly at its annual meeting. When a study or tentative recommendation 

had been prepared, it was circulated to the affected agencies for comment and reexamined by the committee in light of the replies. After final committee approval, a 

proposed recommendation would be transmitted to the Council and then to the Assembly for final action in plenary session. The Assembly could adopt the recommendation in the form proposed, amend it, refer it back to the committee, or reject it entirely. 

The purpose of the Conference was to apply the talents of its diverse group of 

agency officials, practitioners, and academic members to improving the efficiency 

and fairness of the thousands of varieties of federal agency procedures. In my judgment, it was an effective mechanism for achieving that goal—usually through voluntary acceptance of its recommendations by the affected agencies. Inefficiency and 

unfairness in agency procedures often exist simply by reason of bureaucratic inertia, 

and a well reasoned study and recommendation, prepared with the cooperation of 

the affected agency, can often produce desirable change. A few of the Conference’s 

projects have had major, government-wide impact—for example, its recommendation 

leading to Congress’s adoption of Public Law 94–574, which abolished the doctrine 

of sovereign immunity in suits seeking judicial review of agency action. For the most 

part, however, each of the Conference’s projects was narrowly focused upon a particular agency problem, and was unlikely to attract attention beyond the affected 

community. This should be regarded, not as a sign of ineffectiveness, but as evidence of solid hard work. Administrative procedure is not a one-size-fits-all operation; most procedural regimes are unique, and have to be fixed one-by-one. 

The Administrative Conference made several important strides in the area of implementation and saw some of its earlier recommendations bear fruit. Some examples that come to mind are the Justice Department’s almost verbatim adoption of 

the Conference’s guidelines for implementation of the Freedom of Information Act; 

the Civil Service Commission’s publication of proposals substantially applying the 

Conference’s recommendation concerning adverse actions against Federal employees; the Board of Parole’s indication of its readiness to adopt the Conference proposals concerning parole procedures; and the Department of Labor’s adoption of a 

field memorandum that substantially implemented the Conference’s proposals regarding labor certification of immigrant aliens. Agencies that engaged in publicity 

as a regulatory tool adopted procedures conforming to the Conference’s recommendations for protecting against unfair publicity that could harm a private 

party. The Conference’s recommendations regarding procedures for resolution of environmental issues in licensing proceedings were embodied in regulations adopted 

by five of the six affected agencies. 

Some of the Conference’s work also bore fruit at the legislative level. The Parole 

Commission and Reorganization Act of 1976, P.L. 94–233, implemented Recommendation 72–3’s call for a right to counsel in parole proceedings, and other procedural guarantees recommended by the Conference. The 1974 Freedom of Information Act Amendments, Pub. L. No. 93–502, adopted many of the Conference’s rec- ommended improvements to FOIA. The Conference’s encouragement of granting 

agencies authority to impose civil money penalties has had a major, and I think 

beneficial, impact. Many separate statutes implemented the Conference’s recommendation regarding the appropriate standard of pre-enforcement judicial review 

of rules of general applicability. (That recommendation was also cited by court opinions that looked to it for guidance. See Ass’n of Data Processing Service Organizations, Inc. v. Board of Governors of Federal Reserve System, 745 F. 2d 677, 684 

(CADC 1984); Home Box Office, Inc. v. F. C. C., 567 F. 2d 9, 57 n.130 (CADC 1977).) 

Some recommendations were effectively implemented through a combination of congressional and agency action. For example, the Department of Treasury agreed to 

carry out most of the provisions of Recommendation 73–4, which called for increased 

access to customs representatives, greater disclosure, and written findings; and 1974 

legislation implemented the suggested improvements in coordination between Customs and other relevant agencies. Of course some recommendations were framed not 

in terms of what to do, but rather in terms of what to avoid—for example, the recVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 00822 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230

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ommendation cautioning against Congress’s imposition of complex rulemaking procedures, which has been followed with few exceptions. 

The Conference made itself useful in ways beyond specific proposals for legislation, or executive or judicial action. As Chairman, I gave testimony before Congress 

on legislation pertaining to the Freedom of Information Act, the procedures of the 

U. S. Board of Parole, the establishment of a Consumer Protection Agency, possible 

amendments to the Federal Food, Drug, and Cosmetics Act and the Fair Packaging 

and Labeling Act, and the opening of the administrative process to the public. The 

Conference responded to numerous informal requests for advice from congressional 

committees and committee staffs on a wide variety of procedural matters. 

Agencies also sought the Conference’s informal advice and assistance, particularly 

in connection with their initiation of new programs or procedures. I regarded this 

sort of pre-implementation advice as a particularly beneficial activity, since it is obviously preferable to get things started on the right foot than to criticize the deficiencies of a program already in operation. During my first year alone, the staff and 

consultant resources of the Conference were called upon for advice with respect to 

several programs under development—for example, the Department of Transpor- tation’s program to facilitate public participation in their rulemaking process, and 

the Justice Department’s congressionally mandated study into the feasibility of a 

special court for environmental matters. Especially noteworthy was the study which 

the Chairman’s Office prepared, at the request of the Office of Management and 

Budget, covering the procedural provisions of what was then the most significant 

piece of regulatory legislation that had been adopted in years, the Consumer Product Safety Act. This study was completed before the members of the new Consumer 

Product Safety Commission had yet been named, and was therefore a prime example of applying the Conference’s expertise at the point where it is most useful—before procedures have been adopted and institutional commitments made. The Conference also conducted seminars for agency attorneys, emphasizing those aspects of 

administrative procedure that had special relevance to the attorneys’ agency, but 

also refreshing the attorneys’ recollection of basic administrative law principles to 

which they had had no systematic exposure since law school. 

The Conference also conducted studies that, while not producing recommendations 

in and of themselves, were useful in enabling particular administrative functions to 

be understood and evaluated. An example of this is the study completed during the 

first year of my chairmanship by the Committee on Informal Action, systematically 

examining, for the first time, the agencies’ practices in providing advice to the public. Or the study by the Chairman’s Office concerning the various means by which 

agencies handle citizen complaints. 

One way of judging the worth of the Conference without becoming expert in the 

complex and unexciting details of administrative procedures with which it deals, is 

to examine the roster of men and women who have thought it worthwhile to devote 

their time and talent to the enterprise. Over the years, the academics who have 

served as consultants to or members of the Conference have been a virtual Who’s Who of leading scholars in the field of administrative law; and the practitioners who 

have served as members have been, by and large, prominent and widely respected 

lawyers in the various areas of administrative practice. 

I would not presume to provide the Subcommittee advice on the ultimate question 

of whether, in a time of budget constraints, the benefits provided by the Administrative Conference are within our Nation’s means. But I can say that in my view those 

benefits are substantial. The Conference was a proved and effective means of opening up the process of government to needed improvement.

Mr. CANNON. Thank you, Mr. Justice. That was very enlightening, raised points I hadn’t considered in the past. We have strict 

rules here because there’s a tendency that we blather on, and so 

we will adhere at least on our behalf. Thank you very much. 

Mr. Justice Breyer, would you mind presenting your testimony 

now? 

STATEMENT OF THE HONORABLE STEPHEN G. BREYER, ASSOCIATE JUSTICE, SUPREME COURT OF THE UNITED STATES 

Justice BREYER. In the Court, when the red light goes on, people 

stop. [Laughter.] 

Mr. CANNON. We’d like to inject some of that DNA around here, 

but we’ve long since given up. 


052004.AAR
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Justice BREYER. Mr. Chairman and Members of the Committee, 

I’m very pleased to be here with my colleague Justice Scalia. I 

think we’re completely in agreement. I think it’s a very good thing 

that you’re looking into the question of reauthorization. The reason 

I think it is good is I think Americans have problems that call for 

some Government solutions. They might need Social Security. They 

might need a permit in the environmental area. They might need—

they might be veterans. There are just millions and millions of 

interactions between ordinary citizens and Government. 

If you tell the citizens that they just have only to do what the 

Government says or go to court, their life becomes impossible because courts are too expensive and they take too long. So we have 

administrative processes which are supposed to be simple and 

they’re supposed to be less expensive. That’s where the Administrative Conference comes in, because it’s hard to create those processes—very hard. And it’s done at a level that’s highly technical. 

You could say, ‘‘What person actually cares about separation of 

functions rules for rulemaking?’’ All you have to do is mention that 

phrase, and they’re already asleep. But, in fact, whether you have 

one set of rules or another set of rules matters. And if you were 

to say, ‘‘What’s the right set of rules?’’ I couldn’t tell you in theory. 

In theory, there is no right set. You have to have people who know 

about it. And I have been an academic for many years, and I will 

absolutely swear that they don’t know. 

We are very good in the academy at getting theories, but we’re not necessarily so good in finding out how they operate in practice. 

This is where the Administrative Conference came in. 

My first book I ever wrote, a book that I think was extremely 

popular—I think it sold 23 copies. But it was aimed at certain 

questions: How do people actually set rates at the Federal Power 

Commission? Do you remember the Federal Power Commission? 

Well, that was back in the 1960’s, and that was FERC before 

FERC was born. 

So Paul McAvoy and I actually went to the Federal Power Commission. It was impossible in Washington to find anyone who knew 

where it was. We found it. We found the administrators who actually set the rates. It was a woman named Georgia Ledaukis. I remember her. I said, ‘‘How do you set a rate?’’ And she explained 

it. No one had ever asked her that question. But it was that system 

that only she, I think, at the Federal Power Commission knew 

about. and that was really the system that they, in fact, used. 

So, I think that was a good idea. And what the Administrative 

Conference did was formalize that kind of thing. There were four 

kinds of members: there were actual commissioners. I can remember when—it was Dean Burch—do you remember Dean Burch who 

was Chairman of the Federal Communications Commission? And 

he would tell us about the problem of ex parte communications in 

practice. Would you like to know what he said? It’s sort of interesting. He said—I can remember this talk. He said, ‘‘You know, I 

was from Arizona. I was appointed Chairman of the Federal Communications Commission. My neighbors congratulated me. And 

then I came to Washington. I thought I was a pretty important person. But I discovered nobody was the slightest bit interested. Oh, 

no,’’ he said, ‘‘there was one group of people, one group of very poVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 00824 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230

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lite, very charming, really hospitable people who seemed to be interested in everything I said. They were lawyers, and they worked 

for the communications company.’’ He said, ‘‘No, that was in really 

practical form the problem of ex parte communications.’’

Well, I’m just giving you examples. But I’m saying when you put 

the academics together with the agency staffs, the agency commissioners, the heads of the agency, and then some lawyers who are 

actually practical people outside the agency who know what it is 

to deal with them every day. And they discuss things at a technical 

level, sometimes things can change—a little bit for the better. 

What kinds of rules should we have for a proceeding of informal 

rulemaking? How formal should informal rulemaking be? Should it 

be very formal, like formal rulemaking? Hardly formal? Somewhere 

in the middle? The same for every agency? Have exceptions, as we 

do sometimes for some of these procedures? 

The Conference would try to address that kind of question. Someone would write a report. The report would be criticized. It would 

be discussed. Something would emerge, and then recommendations 

would flow, either to the agencies themselves or to Congress. When 

they passed Congress—and sometimes they did—it was not because people thought there was a lot of political force behind it one 

way or the other. It was because they thought it was simply good 

Government. That’s what the commission—that’s what the Conference did. It is a matter of good Government. Its recommendations were not perfect, but I think they helped. And it’s a great 

forum for bringing people together and discussing what will really 

happen, not what the politics or the general policy is about procedure and at a technical level. 

So I’m very glad you’ve looked into this. I’m glad you’re doing it. 

I very much hope you reauthorize the Administrative Conference. 

[The prepared statement of Justice Breyer follows:]

PREPARED STATEMENT OF THE HONORABLE STEPHEN BREYER

Mr. Chairman and Members of the Subcommittee. Thank you for the invitation 

to comment upon the Administrative Conference of the United States. I participated 

in its activities from 1981 to 1994 as a ‘‘liaison’’ to the Administrative Conference 

from the Judicial Conference. I believe that the Conference was a unique organization, carrying out work that is important and beneficial to the average American, 

at low cost. 

During that time, the Administrative Conference primarily examined government 

agency procedures and practices, searching for ways to help agencies function more 

fairly and more efficiently. It normally focused upon achieving ‘‘semi-technical’’ reform, that is to say, changes in practices that are general (involving more than a 

handful of cases and, often, more than one agency) but which are not so controversial or politically significant as likely to provoke a general debate, say, in Congress. 

Thus, it would study, and adopt recommendations concerning better rule-making 

procedures, or ways to avoid legal technicalities, controversies, and delays through 

agency use of negotiation, or ways of making judicial review of agency action less 

technical and easier for ordinary citizens to obtain. While these subjects themselves, 

and the recommendations about them, often sound technical, in practice they can 

make it easier for citizens to understand what government agencies are doing to 

prevent arbitrary government actions that could cause harm. 

The Administrative Conference was unique in that it developed its recommendations by bringing together at least four important groups of people: top-level agency 

administrators; professional agency staff; private (including ‘‘public interest’’) practitioners; and academicians. The Conference would typically commission a study by 

an academician say, a law professor, who often has the time to conduct the study 

thoughtfully, but may lack first-hand practical experience. The professor would 

spend time with agency staff, which often has otherwise unavailable facts and expeVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 00825 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230

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rience, but may lack the time for general reflections and comparisons with other 

agencies. The professor’s draft would be reviewed and discussed by private practitioners, who bring to it a critically important practical perspective, and by top-level 

administrators such as agency heads, who can make inter-agency comparisons and 

may add special public perspectives. The upshot was likely to be a work-product 

that draws upon many different points of view, that is practically helpful and that 

commands general acceptance. 

In seeking to answer the question, ‘‘Who will control the regulators?’’ most governments have found it necessary to develop institutions that continuously review, and 

recommend changes in, technical agency practices. In some countries, ombudsmen, 

in dealing with citizen complaints, will also recommend changes in practices and 

procedures. Sometimes, as in France and Canada, expert tribunals will review decisions of other agencies and help them improve their procedures. Sometimes, as in 

Australia and the United Kingdom, special councils will advise ministries about 

needed procedural reforms. Our own Nation developed this rather special approach 

(drawing together scholars, practitioners, and agency officials) to bringing about reform of a sort that is more general than the investigation of individual complaints 

yet less dramatic than that normally needed to invoke Congressional processes. 

Given the Conference’s rather low cost (a small central staff, commissioning academic papers, endless amounts of volunteered private time, and two general meetings a year), it is indeed a pity that by abolishing this Conference, we have weakened our federal government’s ability to respond effectively, in this general way, to 

the problems of its citizens. 

I have not found other institutions readily available to perform this same task. 

Individual agencies, while trying to reform themselves, sometimes lack the ability 

to make cross-agency comparisons. The American Bar Association’s Administrative 

Law Section, while a fine institution, cannot call upon the time and resources of 

agency staff members and agency heads as readily as could the Administrative Conference. Congressional staffs cannot as easily conduct the technical research necessary to develop many of the Conference’s more technical proposals. The Office of 

Management and Budget does not normally concern itself with general procedural 

proposals. 

All of this is to explain why I believe the Administrative Conference performed 

a necessary function, which, in light of the cost, should have been maintained. I recognize that the Conference was not the most well known of government agencies; 

indeed, it was widely known only within a fairly small (administrative practice oriented) community. But, that, in my view, simply reflects the fact that it did its job, 

developing consensus about change in fairly technical areas. That is a job that the 

public, whether or not it knows the name ‘‘Administrative Conference,’’ needs to 

have done. And, for the reasons I have given, I believe that the Administrative Conference was well suited to do it. 

I hope these views will help you in your evaluation of the need to re-establish the 

Conference. I highly recommend that Congress do so.

Mr. CANNON. Thank you very much, Mr. Justice Breyer. 

Mr. Coble, would you like 5 minutes? 

Mr. COBLE. Thank you, Mr. Chairman. And, again, I apologize 

for my imminent departure, but it’s good to have both of you with 

us. 

Justice Scalia, should ACUS in your opinion be established as a 

part of another agency such as Department of Justice or GSA, for 

example, A? And should it be privatized, B? 

Justice SCALIA. A is easy. I don’t think it would be effective if it 

were a part of any other agency. It was set up originally as an 

independent agency, and I think it has to be that in order to have 

the confidence of the other agencies with which it’s dealing. As you 

know, there are some interagency jealousies and reservations 

which I think would make its studies more difficult if it were a 

subunit of some other department. Besides which, I think being accountable to a Secretary of some Department or to the Attorney 

General would eliminate its independence, which is its whole 

value. It’s not supposed to reflect the view of the current Administration or of the current Justice Department. It’s supposed to repVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 00826 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230

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resent the intelligent, informed view of those who are expert within 

the academic community, the practicing bar, and the Government. 

So if you want to have that, I think you have to make it an independent agency. I think it would hurt it to put it under something 

else. 

Now, the second question, should it be privatized? I’m not sure 

what you mean by that. I think it has to be within the Government 

because, as I indicated in my initial comments, you have an entree 

to the agencies. No agency likes to be studied. Anybody who says, 

you know, ‘‘We welcome a study,’’ they’re kidding you. Everybody 

would like people to go away and leave me alone. 

But if you have an agency that has the respect of other agencies 

and in which a representative from that agency itself is on the 

Conference, which was usually the case, your chances of being able 

to do a thorough study with the cooperation of the agency are vastly increased. That could not be done by a private operation. 

Mr. COBLE. Thank you, sir. 

Justice Breyer, in this town much is made over, oh, it must bipartisan. Well, I’m an advocate of bipartisanship as well, but by 

the very nature of this city, it’s the capital city of a Republic of 50 

States, and some issues by their very nature and make-up are 

going to be partisan. Justice Scalia I think answered this, but let 

me put it to you, if I may. 

How important is it to preserve the bipartisan, nonpolitical nature of ACUS? 

Justice BREYER. It’s fairly important. I can’t recall in the time I 

was there—I don’t want to say none, but I can’t recall any significant number of issues coming up where partisanship made much 

of a difference. You know, there could have been some, but it’s at 

a level where what is the partisan view of separation of functions 

in rulemaking? You know, for most—that’s not true 100 percent, 

but most of it, it doesn’t take place in the discussion at a partisan 

level. 

Mr. COBLE. Thank you, sir. 

Mr. Chairman, I want you to take judicial notice that I beat the 

red light, and I yield back my time. And thank you, again, gentlemen, for being with us. 

Mr. CANNON. I thank the gentleman. 

Mr. Watt, would you like 5 minutes? 

Mr. WATT. Thank you, Mr. Chairman. 

Justices, reading from the briefing memo that the Committee 

Members got, just to establish a foundation for a question that I 

want to follow up with, the Administrative Conference was established as a permanent, independent agency in 1964 and became 

operational 3 years later. The Conference was created to develop 

recommendations for improving procedures by which Federal agencies administer regulatory, benefit, and other Government programs. It served as a private-public think tank that conducted 

basic research on how to improve the regulatory and legal process. 

After failing to be appropriated funds for fiscal year 1996, ACUS 

ceased operations as of October 31, 1995, and the statutory provisions establishing ACUS have not been repealed. 

Justice Breyer gave us a great snapshot of some of the things 

that the Conference did to formalize and clarify procedures that 


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were absolutely necessary. I sense that we are probably continuing 

to benefit from the work that the Conference did over the years of 

its existence in establishing knowable and uniform procedures. 

I’m wondering if either of you may have examples of some of the 

problems that have been created since 1995 when the Conference 

went out of existence that might have been avoided had the Conference been in place. 

Justice BREYER. We won’t know. I remember one of the things 

they were working on earlier when I was—it was before I was appointed to the Supreme Court. I was on the court of appeals. A 

question that’s always been a tough one, but very interesting, is 

the problem of negotiated rulemaking. Rules take us sometimes a 

very long time to write, and the problem they deal with almost 

goes away by the time they get them written and through the 

courts. And there was an idea that we could produce a negotiated 

process, and that’s not an easy thing to do because sometimes there 

are people left out of the table. 

They’ve done studies on that, and maybe that’s made a lot of 

progress without them. Maybe it hasn’t. I haven’t heard too much 

about it. 

Mr. WATT. That was still a work in progress at the end of 

the——

Justice BREYER. I think a continuous set of works in progress. 

But the short answer is I don’t know. 

Justice SCALIA. That’s my answer, too, Congressman. And it’s not 

easy to know. The biggest part of my job when I was Chairman 

was precisely identifying problems to study. Most of them are 

under the surface. They don’t leap out at you. If they leapt out at 

you, there would be legislation covering the problem. That’s usually 

not the case. It takes some work to discover what the real problems 

are and to discover how to solve them. 

Anyway, you know, I have been out of that business for a while 

now. I’m now in the business of creating problems rather than solving them. [Laughter.] 

Justice BREYER. That’s what I was thinking. I was thinking that 

since we’ve both been on the Court, my guess is that we could get 

a pretty good agenda for them. 

Mr. WATT. I would sense that maybe the people who would be 

most knowledgeable about the problems that may be surfacing as 

a result of not having the Conference in place would be ordinary 

citizens who are trying to work their way through a process that 

there’s really—or improve a process that there’s really no formalized procedure in place at present to improve. So I——

Justice SCALIA. Either citizens, Congressman, or the specialized 

bar that services that particular segment of the community—

maybe the immigration bar or the bar that handles Veterans Administration appeals, things of that sort. That’s where you usually 

get the signals from. 

Mr. WATT. Now, the ABA’s letter has certainly been vigorously 

in favor of doing this. It may be that some of their committees have 

stepped into that void and they’d like to get back out of it and formalize it in a different sense, or be participants in it but not necessarily the only voice that’s being heard in that——


052004.AAW
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Justice BREYER. That’s exactly right, because the Administrative 

Law Section of the American Bar Association has always been active in this area, and both, they co-existed. But what the Conference could do that the Ad. Law Section couldn’t do is just what 

Justice Scalia is talking about: they could get the access to the information inside the Government and the off-the-record reactions of 

people in charge of those agencies. So it produced a conversation 

that you can’t have as easily just through the ABA. 

Justice SCALIA. I was Chairman of the Ad. Law Section for a 

year, and there’s a big difference between showing up at an agency 

and saying, ‘‘I’m from the American Bar Association, I want to 

know this, that, and the other,’’ and coming there from the Administrative Conference which has a statute that says agencies shall 

cooperate and provide information. It makes all the difference in 

the world. 

Mr. WATT. Thank you, Mr. Chairman. I’ve always wanted to 

question Supreme Court Justices and be on the other side of the 

fence. 

Mr. CANNON. This is actually pretty cool, isn’t it? 

Mr. WATT. Yes, this is nice. [Laughter.] 

I will yield back. I’ll resist the temptation to go well beyond the 

5 minutes. I thank both witnesses and thank you for being here, 

and I yield back. 

Mr. CANNON. The gentleman yields back. 

The gentleman from Florida, Mr. Feeney, is recognized for 5 minutes. 

Mr. FEENEY. Thank you, Mr. Chairman. I apologize for being a 

little bit late, but I want to also thank Justice Breyer and Justice 

Scalia for all that you do to help our country in administering the 

third branch of Government under article III. I want to tell you 

that I think everybody on this Committee, regardless of their partisan nature, wants to work with you to find ways to facilitate the 

administration of justice in a manner that best serves our country 

under the principles of the Constitution. 

And I guess to try to throw you what I hope will be a soft ball, 

maybe in my short time—I’ve read your testimony and we appreciate just how far we’ve come since 1946, for example, in the Administrative Procedure Act. I’d like to ask both of you, given that 

you’re not only, you know, great Justices but that you’ve got a 

great historical background in terms of the judicial system and 

with the changes from Justice Marshall right up through today, if 

you would maybe give us some predictions about what our court 

system will look like not 50 years ago but 50 years from now as 

we continue to evolve as a society. Maybe you could some forward 

thinking for us, if it’s not asking too much. 

Justice SCALIA. I’m hesitating, Congressman, because Justice 

Breyer and I came here to talk about the Administrative Conference, and I am afraid that if I answer your question, I am going 

to be on what is known as the slippery slope. We really didn’t come 

to talk about the courts, and——

Mr. CANNON. May I just suggest, we were just talking with staff, 

and, frankly, we would appreciate it if all the Members of the Committee would focus on ACUS. I don’t mean to correct you because 

that’s a fascinating question that I’d like to——


052004.AAX
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Mr. FEENEY. In that case, I’ll withdraw my question 

Mr. CANNON.—sit around with a root beer and talk to the Justices about. 

Justice BREYER. I’ll say one thing about the difference. An administrative process, by and large, is individuals dealing with a bureaucracy. It’s absolutely necessary, it’s supposed to be accessible, 

and it’s supposed to help. The judicial branch is the last place, I 

think—maybe Congress still is—where an individual who has a 

problem with the Government comes into a courtroom and looks 

face to face at the sole individual, usually a district judge, who is 

going to make that decision. 

Now, to me, that’s an incredibly valuable thing. And to me as 

well, although the judicial process is too expensive and it takes too 

long, I think it’s essential to preserve its nature, which is not an 

administrative bureaucracy. And there is room for both. So I can’t 

predict but I can hope, and I hope that 50 years from now the judicial branch will still not be a bureaucracy; it still will be a place 

where the individual comes face to face with that high Government 

official who will decide his or her case; and I also hope it will be 

a lot less expensive and will be run more expeditiously. 

But as I say, those are hopes and they are not predictions. 

Justice SCALIA. He’s provoked me now. [Laughter.] 

If I were going to compare the two, one of the great things about 

our judicial system is that our courts are not a bureaucracy. It is 

the principal difference between our judicial system and the judicial systems of most of the civil law countries. In the Anglo-Saxon 

system, a judge becomes a judge, at least on a prestigious court 

such as a Federal district court or any of the Federal courts, at the 

summit of a successful legal career. He not only has not been a bureaucrat his entire life, he has usually been litigating against the 

Government. So he comes on to the bench with a really independent mind. He is not inclined to swallow everything the Government tells him and so forth. 

In the civil law system, you become a judge right after law 

school. You pick your career. If you want to become a judge, you 

start off as a baby judge and you get promoted through the whole 

judicial system. This creates a wholly different mindset. The 

strength of our courts is precisely that they are not a bureaucracy. 

And that’s why they can help the citizen confronted with a sometimes misunderstanding bureaucracy. But I don’t want to talk 

about the court——

Mr. CANNON. If the gentleman yields back, let me just point out 

that the comments from the panel are very important in the context of what we’re doing here because, before you get to a judge, 

you often have to go through a very long process. And the fact that 

a judge who may be a little bit contrary to the Government, has 

an independent streak, is going to oversee that, is a remarkably 

important part of the process. But, of course, how we get that person through the process, his claims are adjudicated, are dealt with 

early, saving him time and money is very, very important. So we 

appreciate that. 

I’d like to inform the panel that we expect five votes within about 

10 minutes from now, so I am going to actually tap the gavel at 


052004.AAY
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5 minutes. And I hope that we have—Mr. Delahunt, did you want 

to take 5 minutes? 

Mr. DELAHUNT. I will try to limit myself. 

Mr. CANNON. Let me just poll the panel here. I take it, Mr. Conyers, you’d like to ask questions. Mr. Scott, yes. Good. Let me recognize Mr. Delahunt. We’ll go to Mr. Scott. If there is some time 

left, I will wrap. But we do have votes coming, so let’s watch the 

clock. 

Thank you, Mr. Delahunt. 

Mr. DELAHUNT. Thank you, Mr. Chairman. And welcome to both 

judges, and a particularly warm welcome to Justice Breyer, who 

served, as you’ve indicated and as he’s alluded to, in the First Circuit, where he served so well and earned the admiration of the 

Massachusetts Bar and the citizens of Massachusetts and obviously 

other States encompassed in it. It’s good to see you, Judge. 

Justice BREYER. Thank you. 

Mr. DELAHUNT. Clearly, both of you indicate, you know, support 

for reauthorization, and as we discuss it among ourselves, I dare 

say there’s a consensus that when it was functioning, it served a 

very valid purpose. I think both of you have at least implicated 

that it resulted in efficiencies, improvements that translated into 

savings—savings of tax dollars. 

I’d speculate that this panel and most likely the full Committee 

would support reauthorization. I think that’s the inclination of the 

Chair of the Subcommittee. I can’t find any reason not to. Is there 

any reason not to? Let me pose that question to you. 

Justice SCALIA. Well, there’s always money, but I guess nobody’s 

mentioned, and I meant to mention at some point in my testimony, 

that I think the Administrative Conference was an enormous bargain because you are really getting the benefit of the legal advice 

of, I think, some very good private lawyers whose time nowadays 

probably goes out at 500 bucks an hour or something like that. 

Their time was contributed. They got no compensation for serving 

on the Assembly of the Conference. The only expense to the Government was their travel expenses to come to Washington for the 

meetings. But they expended a considerable amount of time in 

committee meetings, in preparing drafts of recommendations—and 

all of this was provided to the Government gratis. 

Mr. DELAHUNT. It’s a good investment. You know, earlier, I think 

it was you, Justice Scalia, that indicated—I mean, this is not an 

issue that’s attracting a standing-room-only crowd. You know, it’s tough to keep your eyes open. 

Justice SCALIA. I’d worry for the country if it did, Congressman. 

[Laughter.] 

Mr. DELAHUNT. Right. And I would concur with those sentiments. But I think it was you, Justice Breyer, that indicated that 

during your tenure there and during the course of the AC’s existence, you know, there were significant savings, that it’s a good investment. It wasn’t just a question of taking advantage of highpriced talent, but the results translated into efficiencies that, in 

fact, saved considerable dollars. 

We have to—if this Committee at some point in time should have 

legislation before it and it leaves here, our responsibility is going 

to be to sell it to our colleagues to ensure passage. And I think 


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what our responsibility is—and I think your testimony, both of 

your testimony here today have provided a record to be able to honestly relate that this is a way to save money, as well as to make 

it more streamlined. 

Mr. CANNON. Would the gentleman yield? 

Mr. DELAHUNT. Sure. 

Mr. CANNON. Justice Scalia, you just said that you compared the 

value or the cost to the Government with the value of the inputs, 

that is, a $500-an-hour lawyer. And I think Mr. Delahunt is moving toward another perspective, which is that we got a lot of value 

out. We would just love, for the record, if you have some way to 

give us a comparison between, say, the $3 million we’re looking at 

authorizing and the value Government gets as product. 

Justice BREYER. Suppose, for example, that you—and I think this 

is a fair example. In a world where it did at one point take an average of several years from the time a rulemaking was considered 

until the time it went into effect as a result of improved procedure 

you cut a month or two off that process, as undoubtedly regulatory 

rulemaking negotiation, even where imperfect, did, and cut off far 

more than that, well, you’ve saved your $3 million right there. 

Mr. CANNON. That might be billions of dollars. 

Justice BREYER. It could. It easily could, a major environmental 

rule, and that’s not even taking account of the fact that the environment will then be protected that much sooner. So there is huge 

saving directly to the public, I think, through a more efficient set 

of rules. 

Mr. DELAHUNT. Mr. Chairman, what I would recommend is that 

you, along with the Ranking Member, request either the CRS or 

some appropriate agency to conduct a review, if you will, that could 

prospectively provide us at least a vague range of the savings that 

could be effected if it was reauthorized, and maybe we could end 

up passing this, getting it on the suspension calendar, and go 

where we should. 

Thank you. Thank you, Judge. 

Mr. CANNON. We expect to have another panel at some point in 

the future. Maybe we can get that cost/benefit then. But let me just 

say for the record now, it appears to me that we’re talking about 

a few million dollars compared to billions of dollars in cost to industry, and as Justice Breyer pointed out, a failure to implement 

protections to save the environment which may be incalculable in 

value. 

Justice Scalia, I think you——

Justice SCALIA. I was just going to say, don’t judge it just on how 

much money it saves, because not all of its recommendations are 

money-saving recommendations. There are two values involved 

here: one is efficiency, the other one is fairness. Sometimes you 

have agencies’ procedures that are just unfair, and it might take 

a little more money to make them fair. But you’d want to do that. 

So I don’t think you can just judge it on the basis of financial 

cost saving, although I wouldn’t be surprised if it ended up having 

saved money overall in its recommendations. 

Mr. CANNON. Thank you, Justice Scalia. 

We’ve had Mrs. Blackburn from Tennessee join us. We have a 

short—time is—we have a vote coming up, and I was going to recVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 00832 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230

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ognize Mr. Watt first, if that would be okay with you—pardon me. 

My Ranking Member is so prominent in my mind that I sometimes 

mistake that. Mr. Scott, would you like to be recognized for 5 minutes? 

Mr. SCOTT. Thank you, Mr. Chairman. 

When Justice Breyer talked about a rate setting, it reminded me 

of that line in ‘‘A Man for All Seasons’’ when Sir Thomas More was 

charged more than the regulated rate for a boat trip, and the response from the boatsman was that the fee coming this way downstream is the same as the fee going back upstream. Whoever set 

the rate doesn’t row a boat. [Laughter.] 

Justice SCALIA. I remember that line. 

Mr. SCOTT. And I’ve remembered that. 

The Conference presents nonpartisan, well-documented facts and 

analysis. We ought not be afraid of intelligent experts’ advice, even 

if it disagrees with our political position. And so I’ve always been 

a supporter of the Conference. 

Let me just ask one question. The members of the Conference 

don’t fall out of the sky. The executive branch, the President appoints the Chairman. Who appoints the others? And should that be 

looked at? 

Justice SCALIA. That’s in my testimony. The Chairman is confirmed by the Senate, so it’s not just a Presidential appointment. 

The private members of the Conference are appointed just by the 

President. And—I think that’s right. Yes. And I think one of the 

jobs of the Chairman is to make sure that the organization does 

not become a partisan organization, that it is not used in order to 

further the policies of the current Administration. If that happens, 

it is deprived of all of its usefulness. 

Mr. SCOTT. Is there something we can do in the appointment—

membership appointment process to make that more likely? 

Justice SCALIA. I think you have to be very careful in selecting 

the Chairman. I think it’s the Chairman’s job. You have to remain 

friendly to the Administration. You know, if the Administration 

thinks that you’re a bomb thrower and, you’re going to be hostile 

to them, you’re not going to get the kind of access you need. But, 

on the other hand, you cannot let the Administration load up the 

Conference with people who don’t have the expertise that you want 

or with people who have axes to grind. It’s up to the Chairman to 

fight against that. And to the extent he’s unsuccessful, the Conference will not be what it ought to be. 

Justice BREYER. You might, Congressman, put a word ‘‘bipartisan’’ somewhere, you know, appropriate as an objective. I used to 

attend the meetings when President Carter was President and 

then again when President Reagan was President. And so I saw 

that change of Administrations. I don’t think it makes a big difference. It made some difference. I wouldn’t say zero. But I don’t 

think it made an enormous difference to the output of the Conference. 

Mr. SCOTT. Were Chairmen reappointed? 

Justice BREYER. No. There were different Chairmen, and it was 

viewed as a prerogative of the Administration. But as I say, the nature of the entity was such that they were searching for bipartisan 

members. It mostly—there were law professors and there were priVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 00833 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230

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vate practitioners. So that’s why I say—I didn’t think it was a 

problem, but I can’t say it’s a zero impact. So urging I think helps. 

I don’t think it’s necessary to legislate it. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Justice SCALIA. I take back what I said earlier. The public members were appointed by the Chairman with the approval of the 

Council. So it wasn’t a matter of the President appointing the private members. The Chairman did have good control over who went 

into the body of the Conference. And so long as he was able to resist any untoward pressures from the Administration to appoint 

people that they for some reason—I don’t know—owed a debt to or 

wanted to put in there so that they could push Administration policies, it was the job of the Chairman to resist that. And he had the 

power to do it because ultimately he was the one who nominated 

the members of the Assembly. And it worked very well in that 

manner, for as long as I knew it anyway. 

Justice BREYER. I would hope that they would go back for the 

first set of appointments and look for some people that have a historic memory—there are a lot of them around—to try to reconstruct 

the mores of the institution. 

Mr. CANNON. It is my sense that the power of the Administrative 

Conference is actually derived from the credibility of the members, 

and that if you ever got in a partisan situation, it would destroy 

the reputation of the Chairman, principally, and would set the 

Conference back a year or two or three before you would get it 

changed out and get new people in. And no man or woman who is 

of the stature to become Chairman of the Administrative Conference is going to allow his or her reputation to be destroyed over 

partisanship when, in fact, no matter how partisan you are, the 

rules are the critical thing here. And administrative interests are 

best protected by having clear rules that then the Administration 

and political people can play with. 

Justice SCALIA. That is absolutely true. And let me mention one 

other factor. As I said in my prepared testimony and in my opening 

remarks, the initial Chairmen of the Conference—and I think this 

continued for a long time—were academics. And you can’t push 

academics around too much because, you know, ‘‘I’ll just go back 

to teaching, which is a great racket. I don’t have to stay in Washington.’’ So, that was, I think, one of the strengths of the Conference, that it usually had an academic as the Chairman. You just 

can’t push them around too much. 

Justice BREYER. I agree. 

Mr. CANNON. Thank you. That is a bell for votes. We have 15 

minutes. That should leave us time. Mrs. Blackburn? 

Mrs. BLACKBURN. Thank you, Mr. Chairman. 

Mr. CANNON. The gentlelady is recognized for 5 minutes. 

Mrs. BLACKBURN. Thank you, Mr. Chairman. And we do have the 

vote, and we need to get out of here. And I’ve enjoyed listening to 

your comments. 

I would just say very quickly, you’ve talked a little bit about the 

importance of the bipartisan, nonpolitical nature of the ACUS, and 

what I—and I’ll have to say this: sometimes in the day and age in 

which we live, when our constituents hear about trying to eliminate waste and red tape and reports from the GAO and the CRS 


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and Government reform and the Inspector Generals and the CFO 

and the CFO Act, many times their eyes just glaze over. And so 

we appreciate you all and your concern and your attitude toward 

this and toward the hearing. 

What I’d like to hear from you very quickly is, in light of all of 

this and looking at the bipartisan, nonpolitical nature, if you will, 

of the ACUS, what would you see as being the top priorities for a 

reconstituted ACUS? 

Justice SCALIA. I think it’s similar to a question that was asked 

earlier, and my response to that was I have been out of the business for too long to know what the first things I would investigate 

are. Probably the most difficult job of the Chairman was precisely 

to identify those areas that are worthy of study. That’s what I 

spent most of my time doing; it doesn’t jump up at you. You have 

to take some time to speak to a lot of people and find out what are 

the most pressing concerns in the administrative field—which, as 

you point out, is a very dull field that not many people are interested in. But there are those of us who love it. 

Justice BREYER. Yes. We are administrative law buffs. [Laughter.] 

I can’t say what’s the most important for the same reason, but 

it does come to mind the fact that we in our Court have divided 

about five ways about the correct meaning of a case called Chevron, 

which has significance. And if I were running that now, I think 

maybe one thing I might like to do is to ask the agencies whether 

the five different things that we have said have mattered. Has it 

hurt them? Has it helped them? That’s a subject they might look 

into. 

Mrs. BLACKBURN. Well, I agree with you. I think those could be 

instructive. And for those of us in each branch of Government and 

across the field that do appreciate an effective, efficient administrative process, it would be a question worth answering. And I think 

we will depart for the votes, and, Mr. Chairman, I thank you for 

the time. 

Mr. CANNON. Thank you. I do have a couple of questions to follow 

up. 

Just along this line, while I recognize that you both are out of 

this business, it seems to me there’s some large trends in society 

that might be appropriate for the Administrative Conference. For 

instance, litigation has increased, especially in some of the environmental areas. We have a phenomenal flourishing of science in 

America, and we’re not integrating that very well, I don’t think yet, 

into our administrative process. We have communication processes 

that are remarkable, online processes that allow people to keep 

track of everybody’s comments and everybody’s input and communications between people within and without an agency. And, of 

course, there’s always the need to create an environment where we 

can have more transparency, and there are probably limits on that. 

So it would seem to me that some of those areas—and there may 

be others in your mind—where as a matter of broad scope, the nature of society has changed, and, therefore, the focus of ACUS may 

be appropriate to be adjusted to look at those things. 

Justice SCALIA. Well, I would certainly tell the new Chairman, 

one thing you might look into is whether teleconferencing couldn’t 


052004.ABD
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be used by agencies more than it is. I don’t know whether that’s 

something that is taken advantage of as much as it ought to be. 

Certainly there have been enormous strides in the facility of that 

procedure, the cost of it, and how close it comes to being in the 

same room. I don’t know if the agencies are doing enough with 

that. Maybe that’s one thing the Conference might look into. Instead of having lawyers and citizens come to Washington or to Peoria—wherever they have their hearings—maybe things could be 

done over the phone. I don’t know. 

Justice BREYER. I think science is a very, very good idea, good 

subject, because scientists disagree about a lot of things, but, still, 

the serious scientists are within a range of disagreement. And how 

to create a process that focuses the actual controversy within what 

I would call the consensus range is a hard topic to do. It’s been 

very difficult in the courts. We’ve had cases trying to focus on that 

issue. In Britain and in continental Europe, they’ve had major 

studies and major efforts to reform their judicial system in that respect, and they’ve proved reasonably successful. 

So there’s a lot to look at, and I think if you could make progress 

in that area, that would be very helpful to everyone. 

Mr. CANNON. Do either of you have an opinion as to whether it 

would be useful to have Members of Congress on the Administrative Conference? 

Justice BREYER. I’m not sure that it would. 

Justice SCALIA. I don’t know any Member of Congress who is an 

expert in administrative procedure. And I don’t want anybody on 

the Conference who’s not an expert in administrative procedure. 

Justice BREYER. The nature of the job is so different. I mean, the 

nature of the job as a person in Congress is to respond to those 

issues that are at a level where they have a generalized response—

a generalized impact upon——

Mr. CANNON. You’re cutting me out of the process, which is sort 

of painful, I might say, with all due respect. [Laughter.] 

Justice SCALIA. You have enough work to do, Mr. Chairman. 

Mr. CANNON. What I was thinking, actually, is perhaps Members 

of—or Chairmen of the Committees that deal with administrative 

law may have an ad hoc or some other sort of role. 

Justice SCALIA. Well, they’re welcome to attend all of the plenary 

sessions, and I’m sure any of the committees would be delighted to 

have a Member of Congress sit in on the committee meeting. I 

think maybe one useful thing that could be done is to keep Congress informed of when all of these committee meetings occur. If 

they want to attend, fine. 

Justice BREYER. Congressional staffs I think did sometimes come. 

Justice SCALIA. Staff did come to the plenary sessions. I’m sure 

of that. 

Mr. CANNON. Let me just ask then a very general question. Are 

there any recommendations you would have for how to change 

what was the Administrative Conference as we go forward in the 

future? 

Justice BREYER. No, I haven’t thought about that. 

Justice SCALIA. I haven’t given thought to it, Mr. Chairman, and 

I don’t want to do it off the top of my head. Nothing immediately 

occurs to me. The most important thing is what I mentioned earVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 00836 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230

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lier. You have to be very, very demanding in the selection of the 

chief executive officer. I think it makes a big difference if you get 

people like Jerre Williams and Roger Crampton, good, solid people 

who will keep it on the right track. 

Mr. CANNON. I must say that I—you’ve said many of the things 

that I have wanted in this record. We appreciate that. The Administrative Conference has been great and been effective because of 

the kind of people that have run it and the kind of people that have 

contributed their time. I certainly would like to see it reestablished. 

I think it would have a great benefit to the American people, far 

beyond the nominal costs that we’re looking at right now. 

We thank you very much, both of you, for coming down. You 

honor us with your presence, and you’ve done great service to our 

cause of bringing back the Administrative Conference to America. 

Thank you. 

Justice BREYER. Thank you. 

Justice SCALIA. Thank you, Mr. Chairman, Members of the Committee. 

Mr. CANNON. We will now be adjourned. Thanks. 

[Whereupon, at 3:08 p.m., the Subcommittee was adjourned.] 


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WHY IS THERE A NEED TO

REAUTHORIZE THE CONFERENCE? 

THURSDAY, JUNE 24, 2004

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COMMERCIAL

AND ADMINISTRATIVE LAW, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:30 p.m., in Room 

2237, Rayburn House Office Building, Hon. Chris Cannon (Chair of 

the Subcommittee) presiding. 

Mr. CANNON. The Subcommittee will please come to order. I 

apologize for being late. We appreciate your being here and I apologize to this esteemed panel for keeping you waiting. This is a matter of great interest and great concern and great importance. I 

think that you are important people and so I appreciate your sufferance because I believe you all believe the same thing about the 

Administrative Conference. 

Last month, as you may recall, our Subcommittee held its first 

of two oversight hearings regarding the issue of whether the Administrative Conference of the United States should be reauthorized. Supreme Court Justices Antonin Scalia and Stephen Breyer, 

the two witnesses at last month’s hearing, enthusiastically testified 

about the many benefits and accomplishments of ACUS. The Justices concurred in what may be for them a rare unanimous opinion 

in their unqualified support for the Conference’s reauthorization. 

This first hearing, at which not one but two esteemed Supreme 

Court Justices extolled the virtues of ACUS, clearly underscores 

the importance of the Conference and significance of our efforts to 

reauthorize it. 

To build on that record, today’s hearing is intended to focus in 

greater detail on exactly how we should go about reauthorizing the 

Conference. Specifically it is my hope that our witnesses will further explain the need for reauthorizing ACUS and provide guidance with respect to the form in which the Conference should be 

reauthorized, the priorities that a reauthorized ACUS should consider, and the anticipated amount of funding necessary to reauthorize the Conference. 

For those who are not familiar with the work and the accomplishments of the Conference let me briefly explain. Over the 

course of its 28-year existence the Conference issued more than 200 

recommendations, some of which were Government-wide and others that were agency-specific. It issued a series of recommendations 

eliminating a variety of technical impediments to the judicial reVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 00839 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230

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view of agency action and encouraging less costly consensual alternatives to litigation. The fruits of these efforts included the enactment of the Administrative Dispute Resolution Act in 1990, which 

established a framework for the use of ADR. 

In addition to those accomplishments, ACUS served as the chief 

implementing agency for the Negotiated Rulemaking Act, the 

Equal Access to Justice Act, and the Congressional Accountability 

Act. The Conference also played a key role in the Clinton administration’s National Performance Review Project with respect to improving regulatory systems. Throughout its existence, ACUS has 

served as a valuable resource for Members of Congress, Congressional Committees and various Federal agencies. 

Some might ask, how can we justify reestablishing and funding 

another Government agency, especially in this belt-tightening environment? The answer, at least to me, is obvious. According to the 

Congressional Research Service, there are growing patterns of evasion among the agencies with respect to notice and comment requirements as evidenced by the increasing number of regulations 

being successfully challenged in the courts. An informal study by 

CRS indicates that 51 percent of these rules were struck down by 

the courts. Needless litigation hurts everyone. It slows the rulemaking process, encourages agencies to try to circumvent public 

comment requirements, and costs taxpayers, I might add industry, 

millions or billions of dollars. 

Another serious area of concern is the lack of a coherent approach among the agencies with respect to emerging issues and 

technologies. These issues include, for example, how the Government should handle private information it collects from our Nation’s citizens and how agencies in this Internet age can promote 

greater public participation in the regulatory process. There are 

also concerns about the need to have peer review and to have regulations well grounded in more or less clear science. Our Nation’s 

people and business communities depend upon Federal agencies to 

promote scientific research and develop science based policies that 

protect the Nation’s health and welfare. Integral to the Federal 

regulatory process is the need to assess the safety, public health 

and environmental impact of proposed regulations. Regulations 

lacking scientific support can present serious safety and health consequences as well as cause the private sector to incur unnecessary 

and burdensome compliance costs. Businesses suffer with the ability to prioritize their investments, and that is a very serious problem. Restoring the Conference in some form, from my perspective, 

would provide a cost effective yet highly valuable solution to these 

problems. 

It is against this backdrop that I look forward to hearing from 

our witnesses today. Now I turn to my colleague, Mr. Watt, the distinguished Ranking Member of the Subcommittee and ask if he has 

any opening remarks. 

[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 COM- MERCIAL AND ADMINISTRATIVE LAW

The Subcommittee will please come to order. 


052004.ABI
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Last month, as you will recall, our Subcommittee held the first of two oversight 

hearings regarding the issue of whether the Administrative Conference of the 

United States should be reauthorized. Supreme Court Associate Justices Antonin 

Scalia and Stephen Breyer, the two witnesses at last month’s hearing, enthusiastically testified about the many benefits and accomplishments of ACUS. The Justices 

concurred—in what may be for them a rare unanimous opinion—in their unqualified 

support for the Conference’s reauthorization. 

This first hearing—at which not one, but two esteemed Supreme Court Justices 

extolled the virtues of ACUS—clearly underscores the importance of the Conference 

and the significance of our efforts to reauthorize it. To build on that record, today’s 

hearing is intended to focus in greater detail on exactly how we should go about 

reauthorizing the Conference. Specifically, it is my hope that our witnesses will further explicate the need for reauthorizing ACUS and provide guidance with respect 

to the form in which the Conference should be reauthorized; the priorities that a 

reauthorized ACUS should consider; and the anticipated amount of funding necessary to reauthorize the Conference. 

For those of you who are not familiar with the work and accomplishments of the 

Conference, let me briefly explain. 

Over the course of its 28-year existence, the Conference issued more than 200 recommendations—some of which were government-wide and others that were agencyspecific. It issued a series of recommendations eliminating a variety of technical impediments to the judicial review of agency action and encouraging less costly consensual alternatives to litigation. The fruits of these efforts included the enactment of 

the Administrative Dispute Resolution Act in 1990, which established a framework 

for the use of ADR. 

In addition to these accomplishments, ACUS served as the chief implementing 

agency for the Negotiated Rulemaking Act, the Equal Access to Justice Act, and the 

Congressional Accountability Act. The Conference also played a key role in the Clinton Administration’s National Performance Review Project with respect to improving regulatory systems. Throughout its existence, ACUS served as a valuable resource for Members of Congress, Congressional Committees, and various Federal 

agencies. 

Some might ask, ‘‘How can we justify reestablishing and funding another governmental agency, especially in this belt-tightening environment?’’ The answer—at least to me—is obvious. According to the Congressional Research 

Service, there are growing patterns of evasion among agencies with respect to notice 

and comment requirements as evidenced by the increasing number of regulations 

being successfully challenged in the courts. An informal study by CRS indicates that 

51% of these rules were struck down by the courts. Needless litigation hurts everyone—it slows the rulemaking process, encourages agencies to try to circumvent public comment requirements, and costs taxpayers millions of dollars. 

Another serious area of concern is the lack of a coherent approach among the 

agencies with respect to emerging issues and technologies. These issues include, for 

example, how the government should handle private information it collects from our 

nation’s citizens and how agencies—in this Internet Age—can promote greater public participation in the regulatory process. 

There are also concerns about the need to have peer review and to have regulations based on sound science. Our nation’s people and business communities depend 

upon Federal agencies to promote scientific research and to develop science-based 

policies that protect the nation’s health and welfare. Integral to the Federal regulatory process is the need to assess the safety, public health, and environmental impact of proposed regulations. Regulations lacking sound scientific support can 

present serious safety and health consequences as well as cause the private sector 

to incur unnecessary and burdensome compliance expenditures. Restoring the Conference in some form—from my perspective—would provide a cost-effective, yet 

highly valuable solution to these problems. 

It is against this backdrop that I look forward to hearing from our witnesses 

today.

Mr. WATT. Thank you, Mr. Chairman, and I thank the Chairman 

for convening another hearing on this subject, the reauthorization 

of the Administrative Conference of the United States. If this 

works, the process that we are following, this will be a classic example of how the legislative process should work, which is to say 

you start by thinking about whether there is a need for something 

to be reauthorized or to be approved and you have a series of legisVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 00841 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230

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lative hearings to document the need that you think exists and to 

document the arguments against whatever you are proposing and 

to evaluate how you ought to implement or reauthorize. 

We started this process, thanks to the Chairman, with two distinguished members of the United States Supreme Court and both 

of them were in agreement about the need for the Administrative 

Conference of the United States, and we are taking this second 

step in the process with what appears to be an equally distinguished panel of witnesses, and I am looking forward to hearing 

their testimony. We obviously have our predilections about the 

need for reauthorizing the Administrative Conference of the United 

States, but need to hear from people who have dealt with it more 

close up, more hands on and to justify having such an entity in 

place and, if there is a need for it, justify how it ought to be reauthorized. 

So I thank the witnesses for being here, and I am looking forward to your testimony, and I am looking at the reporter now who 

is saying, man, he talks a lot slower than that other guy, which 

was the reaction that I used to get when I was practicing law. All 

of the court reporters loved me because I do talk slow enough that 

they can take down what I am saying. 

Mr. CANNON. You are thinking as you are talking, and I was 

reading and that is probably why. I just try to get through the 

reading so we can get to the real stuff and ask questions. 

Mr. WATT. All right. Well, I yield back. I appreciate you having 

a hearing and I certainly support the process and the objective. 

Mr. CANNON. I thank the gentleman. Without objection, the gentleman’s entire statement will be placed in the record. It has been 

a pleasure to work with the Ranking Member on this issue and on 

many other issues. He and his staff have worked with us and it has 

been good to move this process forward. I think it has been a 

thoughtful process, and I think we are at a point where after this 

testimony we are able to refine what we project to do and get some 

legislation moving. 

Without objection, all Members may place their statements into 

the record at this point. Any objection? Hearing none, so ordered. 

Without objection, the Chair will be authorized to declare a recess of the Subcommittee today at any point. Hearing no objection, 

so ordered. 

I ask unanimous consent that Members have 5 legislative days 

to submit written statements for inclusion in today’s hearing 

record. 

In that regard I ask unanimous consent that the record include 

two letters we received in support of reauthorizing the Conference, 

both of which were previously distributed to the Subcommittee 

Members. The first is from Richard Chernick on behalf of the 

American Bar Association’s Section of Dispute Resolution. The 

other is from Professor Paul Verkuil of the Benjamin N. Cardozo 

School of Law of Yeshiva University. Professor Verkuil is the 

Chair-elect of the Association of American Law School’s Section on 

Administrative Law. 

[The information referred to follows:]


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34


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052004.ABO
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Mr. CANNON. And now I would like to recognize the gentleman 

from North Carolina for 5 minutes for the purpose of making a 

statement on the record. 

Mr. COBLE. Well, thank you, Mr. Chairman. I will be very brief, 

Mr. Chairman. I have another meeting I have got to attend, but 

I want to commend you and Mr. Watt. I think you two have done 

a good job of steering the Subcommittee on Commercial Administrative Law very adeptly through the sometimes shoals, reefs, and 

rocks that await you up here. But you all have managed to avoid 

those. 

As you pointed out, this is a very significant issue and, Mr. 

Chairman, you have assembled a very distinguished panel, not the 

least of whom is Mr. Watt’s and my fellow Carolinian, Mr. Boyden 

Gray. But it is good to have all of you here. I apologize, Mr. Chairman, for departing, which is going to be in about 12 or 15 minutes, 

but I thank you. 

Mr. CANNON. Thank you for coming. Mr. Feeney, did you want 

to make any comments to start. 

Mr. FEENEY. Well——

Mr. CANNON. The gentleman is recognized 5 minutes. 

Mr. FEENEY. Well, like Mr. Coble, I will have to be leaving early, 

too, but I have read the testimony of all the witnesses. Appreciate 

you being here. I am very optimistic, like Mr. Watt is especially, 

about this meeting. My short time here in Congress leads me to believe that there is an inverse relationship between how much work 

we get done in Committee and how many live TV cameras and 

microphones there are, so I am optimistic. 

Mr. CANNON. The suggestion being that we do boring and important stuff. 

Mr. Chabot, did you want to address the——

Mr. CHABOT. I enjoy boring stuff as much as anybody else does, 

Mr. Chairman. I am happy to be here this afternoon. But important stuff. 

Mr. CANNON. Thank you. 

Mr. WATT. Mr. Chairman, can I ask unanimous consent to submit for the record the testimony of Sally Katzen that has been offered for the record. 

Mr. CANNON. Without objection, so ordered. 

[The prepared statement of Ms. Katzen follows:]

PREPARED STATEMENT OF SALLY KATZEN

Mr. Chairman and Members of the Subcommittee: 

I greatly appreciate the invitation to testify in favor of the reauthorization of the 

Administrative Conference of the United States (ACUS). For the last several years, 

I have been teaching undergraduates (at Smith College) and graduate students 

(most recently at the University of Michigan Law School and at Johns Hopkins University); among the courses I teach are Administrative Law and The Regulatory 

Process. During the Clinton Administration, I served as the Administrator of the Office of Information and Regulatory Affairs at the Office of Management and Budget 

(1993–1998), where I was responsible for the development and implementation of 

the Administration’s regulatory policy. Before joining the Clinton Administration, I 

was a partner in the Washington DC law firm of Wilmer Cutler and Pickering, 

where I specialized in administrative law. I also served as the Chair of the American Bar Association Section on Administrative Law and Regulatory Practice (1988–

89). 

Most relevant in establishing my credentials on the subject of today’s hearing is 

the extensive experience I have had with ACUS. I was first appointed a Public 


052004.ABQ
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39

Member in 1988 while I was in private practice. I served on several of the ACUS 

committees, eventually chairing the Committee on Judicial Review. I was therefore 

actively involved in the preparation and presentation of various reports and recommendations of ACUS in the late 80’s and early 90’s. In l994, President Clinton 

appointed me one of the five government members of the Council (the governing 

board of ACUS) and designated me as the Vice Chairman. I served in that capacity 

(and for a time as Acting Chairman) until ACUS was closed. 

In fact, I was privileged to testify before this Committee on April 21, 1994, in support of reauthorization of ACUS. [A copy of that testimony, which was reprinted in 

8 Admin. L.J. Am. U. 649 (1994), is attached.] Today, I again urge your favorable 

consideration to authorizing ACUS as an independent agency to study administrative law issues and make recommendations to improve the efficiency, adequacy and 

fairness of the federal government’s administrative procedures (paraphrasing the 

1964 Administrative Conference Act). 

Others have testified about the significant substantive contributions made by 

ACUS, citing specific studies or recommendations or advice to the Congress, the Executive Branch and even the Judiciary. Others have made the point that the structure and composition of ACUS enabled a relatively modest amount of taxpayer funding (less than $3 million annual appropriations) to be leveraged by the far greater 

contributions in kind by practicing lawyers and academics. And you have heard that 

several of the recommendations of ACUS actually saved the federal government significant amounts of money by increasing the efficiency of administrative processes 

without decreasing fairness for the participants. I do not want to repeat what others 

(including my earlier testimony) have said. 

The point I want to emphasize is that my (and others’) judgment on the value 

of ACUS have only strengthened with the passing of time. It is often said that you 

do not appreciate what you have until you no longer have it. That, I believe, sums 

up the past decade for those of us who work in the field of administrative law. 

After ACUS closed and while I was still in government, there were several occasions when I and other senior government policy officials would have greatly benefited from having ACUS opine on pending developments—from how to conduct rulemaking proceedings in an electronic age to how to implement a new program in the 

most efficient, effective and equitable way. We knew from past experience that the 

ideas being considered, while meritorious, might well be improved as the result of 

an objective, non-partisan appraisal/critique. I cannot imagine that those in the current Administration would have any different view. In fact, at a conference held recently at American University on electronic rulemaking, several participants in the 

session on ‘‘next steps’’ (some with government experience and others currently in 

government) called for resurrecting ACUS to provide the kind of broad-based public 

and private input that is essential for good decision making in this area. 

There are two aspects of ACUS that I think are sorely missing. First, on matters 

of substance, ACUS provided an invaluable institutional memory. Invariably, administrations change, and with each new administration there are some bright new 

ideas about how to conduct or carry out administrative processes. Some of these 

ideas are fresh and productive and welcome. Some, however, may sound good or appear simple at first look, but they have in fact been tried before and failed or been 

seriously flawed for one reason or another. What ACUS provided was a forum for 

those who worked and wrote in the field to discuss, evaluate, and provide constructive suggestions based on real life experience. Now when senior government officials 

are presented with a proposal to address or resolve a particular problem in administrative practice, they can—and presumably do—seek out the views of some in the 

academy, individual private practitioners, or their colleagues in other federal agencies (if they know or can find out that these officials have dealt with this or a similar issue). But there is no central repository of expertise and experience that can 

provide a collective view—incorporating the considered judgment of those in the 

public and private sectors, those in academics and those in public administration, 

and importantly, both Democrats and Republicans. That was the beauty, or genius, 

of ACUS—for its very small staff was able to reach out to almost 100 of the most 

knowledgeable and experienced people in the field and tap the accumulated wisdom 

of the profession for the public good. The absence of ACUS is a tremendous loss to 

good government. 

The second aspect follows from a point made above. As I said, the members of 

ACUS came from, and brought with them, varied perspectives. This diversity of 

views was enhanced by the long-standing and time-honored tradition of appointing 

the public members—those from the private sector—across party and philosophical 

lines. And the bi-partisan and collegial nature of ACUS was maintained not only 

in the selection of members, but also in the operating committees and the plenary 

sessions. Simply stated, ACUS was one place where Democrats and Republicans 


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worked together. We might have disagreed (strenuously) on the substance of the 

proposal—should there be a government program in this area or not—but if, in the 

wisdom of Congress, there was to be such a program, we could all agree that it 

should be conducted fairly and efficiently. It is significant, I believe, that both Justices Scalia and Breyer testified in favor of reauthorizing ACUS. Today, Boyden 

Gray and I both speak as stalwart supporters of ACUS. With divided government 

and the increased partisanship that has characterized the last several decades in 

Washington, there are very few such bi-partisan institutions—I should probably say 

non-partisan institutions—where people with vastly different political views can and 

do see eye to eye on administrative processes. That too was the beauty, or genius, 

of ACUS—for those with differing positions to be heard and be reconciled for the 

public good, and that too has been sorely missed. 

I thank this Subcommittee for reexamining this issue and for favorably considering the reauthorization of ACUS.


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Mr. CANNON. I would now like to introduce our witnesses for today’s hearing. 

Our first witness is C. Boyden Gray. Mr. Gray is a partner in the 

newly reconstituted firm of Wilmer Cutler Pickering Hale and 

Dorr. His practice focuses on a broad range of regulatory issues 

with emphasis on environmental matters, including those related 

to biotechnology, clean air, trade and the management of risk. 

Mr. Gray received his undergraduate degree from Harvard University and his law degree from the University of North Carolina. 

After serving as a law clerk for Chief Justice Earl Warren of the 

United States Supreme Court, Mr. Gray joined the predecessor of 

his current law firm. In 1981, he served as Legal Counsel for Vice 

President George Bush. He also served as Counsel for the Presidential Task Force on Regulatory Relief. Thereafter, Mr. Gray was 

Counsel to President Bush from 1989 to 1993. Mr. Gray appears 

today on behalf of the American Bar Association. 

Joining Mr. Gray is Professor Gary Edles. Professor Edles is a 

Fellow in Administrative Law at American University Washington 

College of Law. He is also a visiting professor at the University of 

Hull Law School in England. In addition to an extensive academic 

career, Professor Edles has had a wide-ranging legal career as a 

senior civil servant, specializing in Government regulation and the 

administrative process. Of particular interest, he served as General 

Counsel of ACUS from 1987 to 1995. 

Professor Edles received his law degree from New York University and his Master of Laws and Doctor of Juridical Sciences Degrees from George Washington University Law School. 

Our next witness is Professor Sallyanne Payton. Professor 

Payton teaches at the University of Michigan Law School. During 

her professional career she has worked in the public and private 

sectors. In the 1970’s, for example, she was a Staff Assistant to the 

President for the White House Domestic Council. She later became 

Chief Counsel for the Urban Mass Transportation Administration 

of the U.S. Department of Transportation. Over the course of nearly 20 years, Professor Payton served as either a Public Member or 

Senior Fellow at ACUS. 

Professor Payton received both her undergraduate and law degrees from Stanford University. She appears today on behalf of the 

Executive Organization and Management Standing Panel of the 

National Academy of Public Administration. 

Our final witness is Professor Philip Harter. I understand that 

you interrupted your vacation in Vermont to attend today’s hearing, for which you are to be commended. We thank you. Professor 

Harter is the Earl F. Nelson Professor of Law At the Center for the 

Study of Dispute Resolution at the University of Missouri-Columbia School of Law. Over the course of his 35-year career in academia and the private sector, Professor Harter worked closely with 

ACUS in various capacities. While the Conference’s senior staff attorney, he created a program on regulatory reform. As a consultant 

to ACUS, he developed the concept of negotiated rulemaking and 

authored a series of articles on the use of dispute resolution techniques by the Federal Government. 

Professor Harter received his undergraduate degree from Kenyon 

College and his law degree from the University of Michigan. 


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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 would request that you limit your oral remarks to 5 minutes accordingly. Please feel free to summarize and highlight the 

salient points of your testimony. 

You will note that we have a lighting system before you that 

starts with a green light. After 4 minutes it turns to a yellow light 

and then 5 minutes it turns to a red light. My habit is to tap the 

gavel at 5 minutes. We would appreciate if you finish up your 

thoughts within more or less that time frame. We don’t like to cut 

people off in their thinking and so we are not strict on this point, 

but it works better especially—well, I am not sure how many people we have here to question but I have some questions of the witnesses. We will go through those and you will have an opportunity 

to flesh out your thinking thereafter. After the witnesses have presented their remarks, the Subcommittee Members in the order of 

the time of their arrival will be permitted to ask questions of the 

witnesses, also subject to the 5-minute rule. 

That said, Mr. Gray, would you precede with your testimony? 

STATEMENT OF C. BOYDEN GRAY, ESQ., WILMER CUTLER 

PICKERING HALE AND DORR LLP, ON BEHALF OF THE 

AMERICAN BAR ASSOCIATION 

Mr. GRAY. Mr. Chairman, thank you very much for inviting us 

and inviting me, and I testified before, I think, this very same Subcommittee a couple of years ago against the termination of ACUS. 

So I am very honored to be back to help support its reauthorization. 

I just want to make a couple of observations in addition to what 

my prepared text says, which is the official position of the ABA. 

The U.S. administrative law system I believe is the best in the 

world. It is the most transparent, the fairest and the most economically productive, especially when you look at it in comparison to the 

emerging EU, European Union, system, which is far more bureaucratic, biased against innovation, opaque, and encouraging support 

for incumbents rather than for a level playing field and equal opportunity for all competitors. I think ACUS deserves some of the 

credit for this state of affairs. 

The Administrative Procedure Act is unrecognizable in the sense 

of its original language. It has been largely rewritten, not in derogation of the congressional intent, but to flesh out what the words 

mean, ACUS was an important part of this evolving growth and we 

have a very, very sophisticated administrative system as a result. 

There are now, I think, some strains in the system. 

OIRA, the nerve center at OMB, the Office of Information and 

Regulatory Affairs, often provoked a polarized political response 

notwithstanding the fact that I believe Dr. Graham has done a 

great job, especially with his innovations of the so-called prompt 

letter, which is a guide to agencies to do something if to do so 

would produce a result where its benefits greatly exceed cost. He 

has been very, very evenhanded in his administration of that office, 

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ment as a whole, if he could have a forum for ventilation of arguments for and against his administration of that office. 

There are some other issues that have come up during his tenure, issues involving data quality and related issues involving peer 

review. I think that these three issues would be very useful subjects of study by ACUS if it were to be reauthorized. And I would 

add to this that the notion of looking at the European Union and 

comparative study of its procedures. The Administrative Law Section of the ABA has embarked now on such a study. I am not sure 

it wouldn’t be better if this study could be picked up by a neutral, 

obviously neutral Government entity, rather than have the private 

sector do it with questions about where the funding came from and 

what the funding influence is. I am not sure this transfer could be 

made, but to do a comparison I think is something that hopefully 

ACUS would be in a position, if it were reauthorized, to do. 

Many of the problems that—and they are not serious problems, 

but they are serious enough to warrant the reauthorization of this 

entity. Many of the problems result, if you step back, from a lack 

of dialogue and nonpartisanship or bipartisanship which has characterized the development of the administrative system in this 

country. We need to reinject some bipartisanship into the administrative process. That was the genius of ACUS. 

You asked how it should be reauthorized, the form. I am not sure 

I understand exactly the question, but I am not sure I would make 

it any different than it was before. There was a town hall air to 

much of what it did, a little boisterous, a little out of hand sometimes, people shouting at each other, but it was all in an effort to 

maintain a dialogue in the public meetings, and it was enormously 

successful. I should point out that the history of substantive administrative law has been one of bipartisanship, often forgotten. 

We perhaps think today, and we shouldn’t do this but we probably do, of deregulation as a Republican idea to be opposed by 

Democrats, something that Reagan started, to be frustrated by 

Democratic Presidents. This is, I think, an erroneous view. The 

major deregulation that we have was started really by Senator 

Kennedy and then Professor Breyer, doing transportation deregulation. It was picked up and carried by President Carter with Stu 

Eisenstat taking the lead as Domestic Policy Adviser. Then of 

course it was picked up by Reagan in a more intensive way. But 

there is a direct line of antecedence going all the way back, actually to President Nixon, I think, and it is shared by all Democratic 

Presidents, and I think it would be a mistake to lose this sense of 

shared bipartisanship which has made our system the envy of the 

world. And I do think that ACUS would be very critical to getting 

us back to where we were some years ago. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Gray follows:]

PREPARED STATEMENT OF C. BOYDEN GRAY

I am pleased to be asked to testify here on behalf of the Administrative Law and 

Regulatory Practice Section of the American Bar Association, and the ABA itself, 

on the question of the reauthorization of the Administrative Conference of the 

United States (‘‘ACUS’’). The views expressed in this testimony are similar to the 

letter previously sent to this Subcommittee by Professor William Funk, Chairman 

of the Administrative Law Section. I am myself a former member of the Conference, 


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as well as a former Chair of the Administrative Law Section of the ABA, and I testified before this Committee on May 11, 1995 to oppose the termination of ACUS (testimony attached). 

As you know, the Administrative Conference was established in 1964 as a permanent body to serve as the federal government’s in-house advisor on, and coordinator 

of, administrative procedural reform. It enjoyed bipartisan support for over 25 years 

and advised all three branches of government before being terminated in 1996. 

Through the years, the Conference was a valuable resource providing information 

on the efficiency, adequacy and fairness of the administrative procedures used by 

administrative agencies in carrying out their programs. This was a continuing responsibility and a continuing need, a need that has not ceased to exist. 

The Conference’s work in some cases resulted in bipartisan legislation to improve 

the administrative process. For example, both the Negotiated Rulemaking Act of 

1990 and the Administrative Dispute Resolution Act were the product of the Conference’s work, both in terms of the studies and reports that underlay the justification for these two laws and also in terms of the interested persons and agencies 

brought together to support the law. 

In other cases, the Conference’s work made legislation unnecessary. For example, 

early studies indicated that the exemption from notice and comment in the original 

Administrative Procedure Act for rulemakings involving public property, grants, 

contracts, loans, and benefits was no longer necessary or desirable. As a result of 

the Conference’s work, virtually every agency voluntarily subjected itself to noticeand-comment rulemaking when dealing with these subjects, improving the transparency and acceptability of government rules without the need for legislative 

amendment. 

The hallmark of the Conference’s work was its ability to provide expert and nonpartisan advice to the three branches of government. Drawing on the large number 

of volunteer public members of the Conference, as well as representatives from a 

wide spectrum of agencies, the Conference fostered a conversation among all interested persons and agencies. Utilizing academics for empirical research, which was 

reviewed first by subject matter committees staffed by members of the Conference 

and then by the full Conference, the Conference was able to provide a factual predicate for improvements in the administrative process that were not identified as ideologically or partisan-based proposals. 

I stress the fact that over a quarter century the Administrative Conference of the 

United States maintained a reputation for non-partisan, expert evaluation of administrative processes and recommendations for improvements to those processes. It 

had no power but the power to persuade, and no political constituency other than 

those interested in improving administrative government. 

Not only was the Conference a source of expert and nonpartisan advice, the Conference played an important facilitative role for agencies in implementing changes 

or carrying out recommendations. Thus, a number of statutes, including the Government in the Sunshine Act and the Equal Access to Justice Act, specified that the 

Conference work with agencies in adopting the agencies’ initial regulations. More 

recently, the Conference worked tirelessly to help agencies understand and utilize 

the Negotiated Rulemaking Act and the Administrative Dispute Resolution Act. 

Today, adapting administrative processes to make best use of the Internet is a hot 

topic, but one for which there is no central organization to study different techniques, assess them, and then facilitate the implementation of those that are best. 

It is a testament to the Conference’s unique position that today persons of such 

differing judicial philosophies as Justices Scalia and Breyer can rally behind the recreation of the Conference. Nor is it hard to find many others from across the political spectrum who will similarly commend the re-creation of the Conference to your 

subcommittee. Past chairs of the Conference, such as Professors Marshall Breger 

and Robert Anthony and Judge Loren Smith from one side of the aisle, can join 

hands with lawyer Sally Katzen and administrative judge Thomasina Rogers on the 

other side. 

The Conference proved itself effective at promoting efficiency in government for 

over 25 years. The American Bar Association has long supported the Conference and 

the role it played in advancing administrative procedural reform. We urge you to 

support legislation that would reauthorize the Conference and provide it with funds 

that are sufficient to permit it to continue its important mission. 

You have asked for comments on the form in which the reauthorization should 

take place, and for the regulatory reform priorities a reauthorized Conference 

should examine. I see nothing obvious to change in the way the Conference worked 

before; sometimes it behaved like a town meeting, but that was, and hopefully will 

again be, part of its success as a non-partisan venue. As for items to study, we 


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would suggest some empirical research on the innovation of the OMB ‘‘prompt’’ letter, matters relating to data quality and peer review issues. 

ATTACHMENT

Mr. CANNON. Thank you, Mr. Gray. You have packed an enormous amount of ideas into 5 minutes. I want to go back and explore some of those. Let me just point out here in conjunction with 

what Mr. Watt said and what I would also say. Some of the most 

important issues we have before us today are some of the things 

that we believe will make a difference, are absolutely not partisan 

and have been kept out of the partisan environment. They ought 

to be developed in a nonpartisan environment like ACUS so that 

we can work on some of those very important issues. 

Appreciate your testimony. Mr. Edles. 


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STATEMENT OF PROFESSOR GARY J. EDLES, FELLOW IN ADMINISTRATIVE LAW, AMERICAN UNIVERSITY WASHINGTON 

COLLEGE OF LAW AND GENERAL COUNSEL, ADMINISTRATIVE CONFERENCE OF THE UNITED STATES (1987–1995) 

Mr. EDLES. Mr. Chairman and Members of the Subcommittee, I 

am truly delighted to be here this afternoon to participate in these 

hearings that I do hope will lead to the reauthorization and re-creation of the Administrative Conference. I served in both Republican 

and Democratic Administrations at ACUS, and I thoroughly endorse the thoughtful comments offered by Justice Scalia and Justice Breyer last month as to the need to reestablish ACUS at this 

point in time. But it is certainly reasonable to ask, it seems to me, 

why there is a need for ACUS nearly a decade after it was abolished. 

The simple answer I think is that new regulatory issues have 

arisen in the past decade so that the type of analytical work that 

ACUS once did again needs to be done, and there really isn’t any 

other institution capable of taking on the task in quite the same 

way. So even if one believes that ACUS had to some extent completed its earlier mission by 1995, it is certainly time to start it up 

again. Other individuals or institutions, law professors, experts in 

public administration, bar associations have to some degree 

stepped into the vacuum that was created by ACUS’s demise. But 

those individuals or groups rarely have the type of resources or the 

inclination to take on day in and day out the numerous and various 

issues that ACUS did, to see projects through from a recognition 

of the problem to its meticulous examination to the design of a solution and eventually its implementation. 

I should also add on a personal note that judging from the voice 

mails and e-mails that I get in my American University office from 

Government employees even to this day, there is obviously still a 

need for the type of institutional memory and expertise that ACUS 

once provided. 

I don’t have the precise agenda for an ACUS of the 21st century, 

but I do know that much has changed in the 9 years since ACUS 

was abolished. The era of electronic communication and its role in 

Government decision making, for example, was just beginning in 

1995, and it is now in full flower. Problems affecting immigration 

procedures are surely different today in light of our country’s security needs occasioned by 9/11. There are certainly new questions 

concerning the organization of the Federal Government. What’s the 

proper role for public-private partnerships, self-regulatory organizations, Government contractors for example? Are there problems 

of governmental organization or interagency coordination that impede our country’s ability to compete in world markets. And, Mr. 

Chairman, you mentioned a number of items that I think would 

also warrant ACUS style analysis. 

I think that ACUS’s historic structure, which was a mix of Government officials, leading academics, lawyers from the private and 

public interest bars, plus a range of non-lawyer experts such as 

public administrators, remains the best blend of talent to accomplish ACUS’s mission. The key ingredient for any revitalization, 

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stitution that is both objective and impartial and seen as objective 

and impartial. 

ACUS’s operation and budget were tiny in absolute terms when 

it comes to Government entities. It had 18 employees and $1.8 million budget when it was eliminated in 1995. Perhaps more important, it was extremely small relative to its mission. It was the only 

Federal agency with exclusive responsibility for improving administrative justice and Federal programs that at the time affected 

about $500 million in gross domestic product and involved agencies 

and departments that adjudicated more cases than the Federal 

courts. In fact, the money saved by both the Government and the 

private sector by ACUS’s seminal work in alternative dispute resolution alone far exceeds its annual budget. Those are, I think, 

ACUS’s real value for money. 

My prepared statement offered some modest organizational and 

technical suggestions regarding the revitalization of ACUS. But 

more important than any precise modifications that Congress 

might have, being desirable modifications over the past 9 years, I 

believe that there has to be a political recognition that it is worth 

spending a tiny amount of taxpayers’ money to obtain genuinely 

independent, nonpartisan, expert analysis of issues bearing on the 

governmental process with a view toward improving the fairness 

and efficiency of that process. 

As Justice Breyer pointed out last month, other countries with 

significant administrative systems—Britain, France, Australia, for 

example—have permanent oversight bodies. In fact, the Canadian 

Parliament, which abolished its advisory review body in 1992 during a period of retrenchment and budget cutting that was not terribly different from what went on in this country, quickly realized 

that it had made a mistake and reestablished its commission only 

4 years later. Our citizens, it seems to me, Mr. Chairman, deserve 

no less. 

I want to applaud the work of this Committee and staff in holding these hearings, and I hope they will be the first step leading 

to the reauthorization and funding of the Administrative Conference. I will try as best I can to answer any questions that you 

may have. 

[The prepared statement of Mr. Edles follows:]

PREPARED STATEMENT OF GARY J. EDLES

Mr. Chairman, members of the subcommittee. I want to applaud the subcommittee’s decision to hold theses hearings and I hope that they will lead to the long-overdue reauthorization and funding of the Administrative Conference of the United 

States, or ACUS. I served as ACUS’ General Counsel from 1987 to 1995, and urged 

its re-creation in a 1998 law review article, The Continuing Need for an Administrative Conference, 50 Admin. L. Rev. 101 (1998). I thoroughly endorse the thoughtful 

comments offered at the subcommittee’s hearing last month by Justices Scalia and 

Breyer, and the observations of the American Bar Association, setting out the reasons for—indeed, the need for—ACUS’ re-establishment at this time. 

THE NEED FOR AN ADMINISTRATIVE CONFERENCE

I strongly believe there is a need for the reauthorization of an Administrative 

Conference and that ACUS is ‘‘very good value for money.’’ Despite the presence of 

a written Constitution and a government-wide procedural statute (the APA), the 

federal administrative process, by design and evolution, is characterized by a considerable degree of procedural flexibility and agency discretion. Given that flexibility 

and discretion, some form of independent oversight entity is needed to help ensure 


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that the process is effective, accountable, and, perhaps most important, fair to our 

citizens. ACUS successfully played a key oversight role in the past and I believe 

such an institution is still needed. 

As a practical matter, there are no other entities that can play the unique role 

that ACUS played. The courts are ill suited to perform a meaningful role as supervisor of the details of agency operations. Very few agency actions, even those that 

significantly affect members of the public, turn into litigated cases, in part because 

they are not amenable to judicial remedy or the average citizen simply can’t afford 

the cost of litigation. So, many agency procedures and practices don’t find their way 

into the courts. And the best a court can do in any event is to correct a problem 

in the case before it. The courts are simply not set up to be pro-active in proposing 

systematic change. 

Likewise, Congress cannot be expected to oversee the minutiae of agency operations and procedures. Congressional oversight of administrative agencies has always been episodic. Congress, quite frankly, has many more fundamental issues on 

its plate. For example, Title II of Public Law 104–121, the Small Business Regulatory Enforcement Fairness Act of 1996, gave Congress an opportunity to review 

agency regulations before they became effective and enact legislation to prevent 

them from going into effect. But the provision is limited to rulemaking initiatives, 

which make up only a portion of overall agency activity. Moreover, agencies place 

several thousand regulatory actions in the Federal Register annually, but Congress 

has historically managed to enact only 150–200 bills each year. As a consequence, 

to my knowledge, Congress has used its rulemaking review power only once since 

the statute was enacted. Congess, in short, rarely involves itself in the type of procedural particulars that ACUS regularly examined. 

It is doubtful that centralized review by the President, or even his senior deputies, 

can effectively oversee the finer points of the regulatory process. Although presidential review is theoretically possible, my colleague, Professor Thomas Sargentich, 

has suggested several factors that necessarily limit the President’s power as a prac- tical matter: the multitude of issues flowing through agencies daily, the severely 

limited resources of executive oversight, and the variety of control relationships that 

exist in the administrative system. 

Nor can agencies be expected to devote their time and energy to critical self-examination. In an era when resources are scarce and must be channeled into accomplishing the numerous tasks assigned to them by Congress, agencies can devote very 

little time to reflection unless pressed to do so by outside political pressure. 

Individual scholars or ad hoc advisory groups can study agency practices and procedures to some degree. Indeed, the Section of Administrative Law and Regulatory 

Practice of the American Bar Association has done an excellent job of picking up 

some of the slack after ACUS was abolished. But the details of day-to-day administrative procedure are often arcane and typically agency-specific, so they rarely attract the attention of academic scholars, who prefer to devote their time and energy 

to doctrinal or policy issues that have a larger audience. Moreover, neither academic 

researchers nor ad hoc advisory groups have the time or incentive to pursue research or recommendations to the implementation phase, particularly where such 

phase can last a decade or more. 

A permanent, independent body such as ACUS also melds the expertise and perspectives of the government agencies, the private sector, including, importantly, the 

practicing bar, and members of the judiciary and the academic community. The participation of senior government officials—especially career civil servants—brings a 

unique form of expertise and experience. Agency officials are typically thoroughly 

familiar with the intimate workings of their own agencies. That expertise is essential to effective procedural reform. But agency officials can also have a stake in existing procedures that they administer or may even have created. And I have always 

found it surprising how unfamiliar agency officials often are with the experience of 

sister agencies. So sensible oversight requires the bringing together of expertise 

from numerous agencies across the government. 

The participation of non-government members is crucial. It helps ensure that recommendations reflect the problems and perspectives of those who must actually deal 

with government and have experienced the frustration of trying to work their way 

through the bureaucracy or perceive government procedures as unfair. Judges lend 

their perspectives as generalist experts in fair procedure and reviewers who examine administrative action when it is challenged in court. Participation by members 

of the academic community helps guarantee that studies are thorough and doctrinal 

elements are not ignored. 

Finally, a permanent institution allows a career staff to develop expertise in the 

areas of administrative law and government organization and process and devote 

time and resources to implementing recommendations. Judging from the number of 


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telephone calls or e-mails I received at my American University office after ACUS 

was abolished, the need for some form of institutional memory is critical. 

Over 40 years ago, federal Court of Appeals Judge E. Barrett Prettyman, reporting on behalf of the temporary Administrative Conferences created by President 

Kennedy, summarized ACUS’ value as follows:

The heavy pressures of Government to discharge immediate responsibilities 

may at times rob administrators of the time needed for consideration of procedures. Imperfections in method . . . may acquire the protective coloration of familiarity, and the demands of the daily job may lessen the will to achieve 

change.

The committees of Congress, suitably concerned as they are with matters of 

substantive policy, can only sporadically occupy themselves with the details of 

methodological and organizational problems. . . . Nor do we think that hope of 

major accomplishment lies in occasional studies by groups external to the Government. . . . The current need is for continuous attention to somewhat technical problems, rather than for public enlightenment concerning a few dark 

areas that cry for dramatic reforms. A discontinuous commission . . . is unlikely to have great impact upon the day-to-day functioning of the Federal agencies. Letter from Judge E. Barrett Prettyman to President John F. Kennedy 

(Dec. 17, 1962), Legislative History of ACUS (on file, ACUS Collection, American University Washington College of Law Library),

Those reasons help explain why other countries with significant administrative 

systems have permanent oversight bodies. For example, Britain has its Council of 

Tribunals that continuously monitors the work of that country’s numerous tribunals 

and makes recommendations for procedural improvement. Much like ACUS, its detailed work is its greatest strength. The Australian Administrative Review Council 

has responsibility for giving advice on the workings of the administrative review 

system in that country. Canada too has a Law Commission that advises its Parliament on how to improve and modernize Canadian law. In fact, in 1992, a new 

Canadian government introduced a budget package designed to reduce both the federal budget and the deficit. It proposed abolition, privatization or consolidation of 

46 separate agencies or programs. The Law Commission of Canada was one of the 

agencies abolished. The Commission was smaller than ACUS, but its jurisdiction 

was far broader, extending to ‘‘the statutes and other laws comprising the laws of 

Canada.’’ It employed the same general methodology as ACUS—systematic review 

and oversight of Canadian legal matters and the submission of recommendations for 

improvement to Parliament and the agencies and departments of government. The 

government quickly realized that abolishing the Commission had been ‘‘penny-wise 

and pound foolish’’ and the Canadian Parliament re-established the Commission, in 

a somewhat modified form, only 4 years later. 

NEED FOR INDEPENDENCE

The need for a genuinely nonpartisan and independent advisory body has been 

recognized throughout ACUS’ history. A Republican President, Dwight Eisenhower, 

established the first Administrative Conference on a temporary basis in 1953. A 

Democratic President, John Kennedy, created a second temporary Conference in 

1961. Apart from their numerous proposals for specific improvements in agency procedures, both temporary groups strongly endorsed the need for a permanent institution. Congress agreed, and created what was designed to be a permanent institution 

in 1964 with passage of the Administrative Conference Act. 

A separate, independent institution serves to maintain both objectivity and the 

appearance of objectivity. From its earliest days, ACUS had a bylaw providing that 

each member participated ‘‘according to his own views and not necessarily as a representative of any agency or other group or organization.’’ It is doubtful, for example, that federal judges would have, or could have, participated in an institution 

that was not genuinely independent of an incumbent political administration. So 

ACUS would have lost the valuable insights of numerous federal judges, such as 

Justice Breyer, if it were seen as closely allied to the President, irrespective of 

which party was in power. Although the ACUS Chairman and staff were careful not 

to lock horns unnecessarily with an incumbent administration, ACUS’ recommendations at times parted company with the official view of the President or particular 

departments or agencies of government. I think that committees of Congress especially appreciated that when ACUS provided its advice, it was not doing so simply 

as a spokesperson for a current administration. 

As part of its independence, Congress needs to ensure that ACUS has some funds 

for independent research. Over the years, ACUS affected major alterations in the 


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federal administrative process. It recognized the need to develop fundamental 

changes in the process of the entire government. But it also examined the need for 

improvements in the organization and procedures of individual agencies. Its studies 

almost always focused on empirical inquiry, although they did not ignore doctrinal 

elements. During the period when I served as ACUS’ General Counsel, from 1987 

to 1995, agency-specific studies were conducted at the request of several agencies, 

often with the financial support of the requesting agency. Congress encouraged this 

approach in an effort to make ACUS more self-sustaining. Although ACUS was always receptive to conducting studies on behalf of agencies interested in self-examination, a number of us were concerned about excessive reliance on funds from other 

agencies to sponsor projects. I would emphasize that no agency was ever able to influence ACUS’ recommendations despite having requested or underwritten a study. 

Still, I believe that excessive reliance on agency funds can undermine public confidence in the objectivity of ACUS’ research. Equally important, too much reliance 

on agency funding introduces instability in the research program because areas that 

need examination may not get it for lack of outside funding and a constant flow of 

funds from other agencies can never be assured. In my judgment, some independent 

research budget is essential. 

STRUCTURE AND MISSION FOR A REAUTHORIZED ACUS

Any revitalized ACUS should remain essentially advisory. From time to time during ACUS’ history, elements within ACUS or its supporters urged that it be given 

authority to compel, rather than merely recommend, action by agencies. In my view, 

that’s a bad idea. Such expansion of its authority will compromise ACUS’ ability to 

achieve actual reform. Much of its success stemmed from its ability to enlist an 

agency’s support even when that agency was the subject of study. Numerous agencies actively solicited ACUS’ help. And, in most cases, agencies adopted ACUS’ recommendations. Any change from advisory to mandatory powers would alter ACUS’

relationship with its member agencies from that of an impartial adviser to that of 

a policeman or potential adversary and compromise its ultimate ability to effect 

change. Nonetheless, I do believe that ACUS should undertake to bring to the attention of Congress or the President whether, and to what extent, its recommendations 

have been adopted. Providing Congress and the President with impartial advice, including a status report on agency implementation of ACUS recommendations, is not 

inconsistent with ACUS’ advisory mission. 

Given the changing complexion of regulatory problems, and the recognized public 

dissatisfaction with government regulation, but the apparent lack of consensus on 

how to reform it, I think a revitalized ACUS should examine whether there are institutional elements that bear on regulatory failure. During my tenure, ACUS had 

economists among its members, such as OMB Director James Miller, and I think 

a revitalized ACUS would benefit from a membership that also included public administrators. A revived ACUS can be smaller than the 101-member Assembly. Such a large 

group provided broad representation of interests but, at times, frustrated efficient 

operation. As with any organization, not all members were equally active. Senior political officials from the government, in particular, often had schedule conflicts that 

compromised their participation. These scheduling conflicts also intermittently led 

to quorum problems. So the work typically fell to a smaller group of active members. 

As long as the balance between government and private interests is retained, and 

all cabinet departments and a fair representation of other agencies are included, 

fewer than 101 individuals could accomplish ACUS’ statutory mission. 

Reform of entrenched administrative practices and attacking bureaucratic inertia 

takes time and perseverance. One of ACUS’ strengths was its ability to see its ideas 

through from concept, to design, to implementation. So, in reauthorizing ACUS, 

Congress needs to ensure an ongoing role for a permanent, career staff. 

However, the permanent staff might be a bit smaller than the 24 employees that 

made up the Office of the Chairman during the high water mark of ACUS’ activities. While a small corps of permanent employees is essential, there is no reason 

why employees temporarily assigned from other agencies could not supplement the 

permanent staff. The existing statute permits this arrangement and, over the years, 

ACUS had an active ‘‘visiting executive’’ program that allowed a number of highly 

talented government employees to join the ACUS staff for temporary periods while 

remaining on their home agency’s payroll. A new ACUS could also augment its operations without an additional outlay of funds through an affiliation with a law school 

or school of public administration, whose students and faculty could assist in, or 

supplement, the conduct of research, the coordination of peer review for oversight 

of projects, and the drafting and implementation of recommendations. 


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ACUS’ budget was tiny by governmental standards—only $1.8 million when it 

was eliminated in 1995. Even ACUS’ critics acknowledged that its abolition had no 

meaningful effect on the overall federal budget. Perhaps more importantly, ACUS’

budget was also small relative to its mission—it was the only agency with exclusive 

responsibility for improving administrative justice in federal programs that, at the 

time, affected about $500 billion of the gross domestic product and involved government departments and agencies that adjudicated more cases that the federal courts. 

Indeed, the amount of money saved by both the government and the private sector 

from ACUS’ seminal work in the area of alternative dispute resolution, standing 

alone, far exceeded its annual budget. Given inflation since 1995, I think that ACUS 

could operate successfully at the outset on a modest budget in the $2–3 million 

range. In summary, though, I think that the precise size and organizational structure of 

a new ACUS is much less significant than the political recognition that some entity 

needs to be available to police the inner recesses of the administrative process, and 

that ACUS is the best available option. It provides, as Justice Scalia pointed out, 

‘‘a unique combination of scholarship and practical know-how, of private-sector insights and career-government expertise.’’ Its essential purpose today would be the 

same as when it was originally created—to identify the causes of government inefficiency, ineffectiveness, delay and unfairness, recommend ways to change things, and 

pursue those recommendations to fruition. 

EMOLUMENTS CLAUSE ISSUE

As part of the reauthorization process, I urge the committee to clarify the uncertainty that exists over a rather technical issue, namely the applicability of the 

Emoluments Clause of the U.S. Constitution to non-government members of ACUS. 

The uncertainty arises because of a 1993 opinion by the Office of Legal Counsel, Department of Justice (OLC), and ACUS’ inability to have the matter resolved before 

it went out of business in 1995. Congress should make clear that, in its view, ACUS’

members from outside the federal government who serve part-time, are unpaid for 

their services, and are explicitly required by the statute to be chosen for their expertise do not, simply because of such service, hold an ‘‘Office of Profit or Trust’’ within 

the meaning of the Emoluments Clause. Rather, they should be treated like members of any other federal advisory committee. Absent resolution of the issue by Congress, the status of ACUS’ non-government members will remain in doubt and the 

ability of a revitalized ACUS to attract the most distinguished individuals from the 

private sector will be seriously compromised. 

As you may know, the Emoluments Clause provides that ‘‘no Person holding any 

Office of Profit or Trust . . . shall, without the Consent of the Congress, accept . . . 

any present, Emolument, Office, or Title, of any kind whatever, from any King, 

Prince, or foreign State.’’ U.S. Const., art. I § 9 cl. 8. The Constitutional Convention 

included the Clause in order to shield foreign ministers and other officers of the 

United States government from undue influence and corruption by foreign governments. However, in a 1991 opinion, OLC substantially expanded the historic understanding of the Clause when it concluded that even ‘‘[f]ederal advisory committee 

members hold offices of profit or trust within the meaning of the Emoluments 

Clause.’’ Applicability of 18 U.S.C. § 219 to Members of Federal Advisory Committees, 15 Op. O.L.C. 65 (1991). The 1991 opinion, although presumably affecting a 

thousand or more advisory committees at scores of federal agencies, went essentially 

unnoticed at the time. 

On October 28, 1993, OLC issued a further opinion addressing two rather esoteric 

Emoluments Clause questions specifically affecting ACUS members. First, it concluded that ACUS’ academic members, such as law professors, are prohibited by the 

Emoluments Clause from serving on ACUS if, absent Congress’ consent, they accept 

any payment from a commercial entity owned or controlled by a foreign government, 

including universities or law schools. That ruling had the effect of preventing any 

academic from serving as an ACUS member if he or she at any time undertook any 

employment relationship with a foreign government-owned academic institution—

even a one-semester visiting professorship or a single compensated lecture. Second, 

OLC determined that an ‘‘Emolument’’ within the meaning of the Clause included 

any distribution of partnership shares that includes some proportionate share of the 

revenues generated from the firm’s foreign government clients even though the 

ACUS members themselves did not personally represent any foreign clients and had 

no dealings with them. Applicability of the Emoluments Clause to Non-Government 

Members of ACUS, 17 Op. O.L.C. 114 (1993). What we discovered at the time was 

that, at most law firms, it is impossible to segregate partnership earnings to exclude 

from one partner’s share some amount—often miniscule—associated with another 


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partner’s foreign government clients. So, absent Congress’ consent, lawyers in large 

law firms whose partners had foreign clients could no longer serve on any advisory 

committee. Importantly, in reaching its decision, OLC did not reconsider its fundamental 1991 view that advisory committee members, such as non-government ACUS 

members, occupy an ‘‘Office of . . . Trust’’ within the meaning of the Emoluments 

Clause. Some of ACUS’ members resigned in light of OLC’s decision. 

The matter has been partially—but, unfortunately, not fully—resolved in the 

years since 1993 because OLC has retreated from its original determination. Immediately on the heels of its October, 1993 ACUS opinion, OLC, at the behest of the 

Department of State, reconsidered and revised its underlying view regarding the applicability of the Emoluments Clause to unpaid members of advisory committees. On 

March 1, 1994, in an unpublished letter to State Department Legal Adviser Conrad 

Harper from OLC Assistant Attorney General Walter Dellinger, subsequently cited 

in Applicability of 18 U.S.C. § 219 to Representative Members of Federal Advisory 

Committees, 1999 OLC LEXIS 11 (1999), OLC determined that ‘‘not every member 

of an advisory committee necessarily occupies an ‘Office of Profit or Trust’ under the 

[Emoluments] Clause.’’ Later in 1994, OLC modified its view regarding advisory 

committee members from the academic community. It determined that while foreign 

public institutions, such as universities, were presumptively instrumentalities of a 

foreign state for Emoluments Clause purposes, individuals did not come within the 

Emoluments Clause if the foreign academic institutions with which they had a relationship are independent of the foreign government when making employment decisions. See Applicability of Emoluments Clause to Employment of Government Employees by Foreign Public Universities, 18 Op. O.L.C. 13 (1994). In 1996, OLC publicly rejected what it now characterized as its previous ‘‘sweeping and unqualified view’’ that federal advisory committee members hold offices of profit or trust and 

were thereby subject to the Emoluments Clause. It went on to conclude that members of the State Department’s Advisory Committee on International Economic Policy do not occupy an ‘‘Office of Profit or Trust’’ within the meaning of the Emoluments Clause. See Letter Opinion for the Deputy Legal Advisor, Department of State, 

The Advisory Committee on International Economic Policy, 1996 OLC LEXIS 63 

(1996). 

Unfortunately, the 1994 unpublished letter to Conrad Harper at the Department 

of State has not, to my knowledge at least, been made public. When I learned of 

its existence, long after ACUS had been abolished, I requested from OLC and the 

Department of State both a copy of the letter and any underlying documents from 

the State Department to OLC that might help illuminate OLC’s new rationale. Because I was now a member of the academic community, I had to make my request 

pursuant to the Freedom of Information Act. My FOIA requests were denied by both 

agencies. So the bases for OLC’s 1994 change of heart, and the factors that influenced it, are, as best I can tell, still not publicly known. 

OLC did issue a brief, two paragraph, published opinion on the subject in 1996. 

However, in that opinion OLC simply pointed to various factors that took members 

of the State Department’s Advisory Committee on International Economic Policy out 

from under the Emoluments Clause. OLC pointed out that the members of that advisory committee met only occasionally, served without compensation, took no oath, 

and did not have access to classified information. OLC further indicated that the 

State Department committee was purely advisory, was not a creature of statute, and 

discharged no substantive statutory responsibilities. Beyond noting these factors, 

however, OLC failed to set out in any principled way which of these seemingly key 

characteristics, or combination of them, would render other advisory committee 

members subject to, or not subject to, the Emoluments Clause. For example, is the 

mere fact that Congress created the advisory committee by statute sufficient, by 

itself, to render advisory committee members subject to the Clause? If so, why is 

that so, and are the other factors thus either irrelevant or surplusage insofar as 

OLC’s analysis is concerned? In the circumstances, OLC’s view on the applicability 

of the Emoluments Clause to prospective ACUS members cannot be determined. 

Nonetheless, if rigidly or individually applied, the fact that the Conference is created by statute, that the membership as a whole is technically responsible for the 

Conference’s activities, and that, through its Chairman and permanent career staff, 

it performs statutory duties other than making recommendations, could be seen to 

subject the non-government members to the Emoluments Clause. So Congress needs 

to declare its intent that ACUS’ non-government members be treated in the same 

way as members of other advisory committees and indicate that it is aware of the 

OLC opinion but does not believe that the Emoluments Clause should be a barrier 

to service by ACUS’ academic members or individuals in large law firms as long as 

the non-government members do not, themselves, represent foreign governments. 

This is plainly within Congress’ constitutional capacity to do. 


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I would point out that, apart from ACUS’ statutory creation, none of the other 

factors noted as relevant in OLC’s 1996 opinion apply to non-government ACUS 

members. Non-government members meet only occasionally, serve without compensation, do not have access to classified information, and are not required to take 

an oath. They perform purely an advisory role akin to that performed by advisory 

committee members throughout government. The job of the Assembly of the Conference, made up of its entire membership, is to study issues of administrative procedure and adopt recommendations for improvement. See 5 U.S.C. § 595(a), setting 

out the Assembly’s statutory responsibilities. Although the Assembly technically ‘‘has ultimate authority over all activities of the Conference,’’ its functions are necessarily confined by the specific administrative and executive powers conferred expressly on the Chairman and the Council in 5 U.S.C. § 595(b) and (c). And, as a 

practical matter, during my term of office at least, the Assembly and its non-government members (apart from the 5 non-government members of the Council) did not 

perform any functions that were not related to their advisory responsibilities. In 

short, the Assembly, meeting twice a year in Plenary Session, and through its committees on an irregular basis at other times, was entirely a recommending or advisory body. 

ACUS’ statutory footing or its other statutory responsibilities do not alter the advisory role of its non-government members. Although ACUS is both a statutorily 

created federal agency and an advisory committee, its non-government members 

participate only in its advisory functions. The statute created the position of Conference Chairman as its chief executive. He or she is a full-time federal employee 

who, along with the professional staff, conducts ACUS’ day-to-day activities. The 

Chairman and staff ensure implementation of ACUS recommendations and the accomplishment of any statutory assignments given to ACUS by Congress. They serve 

as a clearinghouse for government agencies on administrative process issues. In 

other words, to the extent that ACUS as an agency performs tasks that might be 

considered to be non-advisory, these tasks fall within the purview of the Chairman 

and staff, who, as federal officials, are clearly subject to the Emoluments Clause. 

ACUS’ 40-year history testifies to the fact that Congress has always known 

about—and, indeed, has endorsed and statutorily required—the appointment of distinguished law professors, lawyers in private practice, and other experts as non-government members. There were two temporary Conferences, neither of which was established by statute—the first created by President Eisenhower in 1953, the second 

established by President Kennedy in 1961. They were made up of law professors, 

lawyers in private practice, and other experts, with a federal judge as chairman. 

Those Temporary Conferences were explicitly the model for the statutorily established Conference created by Congress in the Administrative Conference Act of 

1964, P.L. 88–499. Indeed, in section 593(b)(6) of Title 5 Congress expressly required 

that non-government members shall be chosen to ‘‘provide broad representation of 

the views of private citizens and utilize diverse experience. The members shall be 

members of the practicing bar, scholars in the field of administrative law or government, or others specially informed by knowledge and experience with respect to Federal administrative procedure.’’ Establishment of ACUS by statute worked no 

change in the basic advisory role of its non-government members. An Administrative Conference rooted in a statute, as recommended by both temporary Conferences, was intended solely to give the advisory body permanent status. In my 

opinion, if anything, ACUS’ statutory underpinning, and Congress’ express articulation of membership qualifications, manifests de facto congressional consent to any 

Emoluments Clause issue that a statutory foundation, standing alone, might be 

seen to pose. 

But I recognize that the 1993 OLC opinion will complicate and compromise ACUS’ ability to attract the most distinguished individuals from the private sector. So Congress should eliminate any ambiguity by amending the statute as part of the reauthorization process. There is no drawback in doing so. The Assembly, and its committees, have always operated, and must continue to operate, pursuant to the openness requirements of the Federal Advisory Committee Act, 5 U.S.C. Appendix, as 

do other federal advisory committees. Non-government members must comply with 

pertinent Office of Government Ethics disclosure requirements. So I recommend 

that Congress make two statutory modifications. First, it should delete the second 

sentence of section 595 that confers on the Assembly ‘‘ultimate authority over all 

activities of the Conference.’’ This will eliminate any technical argument that the 

Assembly plays a role in the administrative operation of the agency. Second, it 

should add a final sentence to section 593(c) to provide explicitly that ‘‘Members of 

the Conference from outside the Federal Government do not, by virtue of their appointment, hold an ‘‘Office of Profit or Trust’’ within the meaning of Article I, § 9, 

cl. 8 of the U.S. Constitution.’’ At a minimum, Congress should make clear in the 


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legislative history that, in reauthorizing ACUS, it fully anticipates, and consents to, 

membership by individuals who are members of the practicing Bar, scholars in the 

field of administrative law or government, or other experts in federal administrative 

procedure irrespective of any highly attenuated relationship with a foreign entity of 

the type OLC found to implicate the Emoluments Clause. 

I appreciate the opportunity to participate in the subcommittee’s hearings and I 

sincerely hope that they are the beginning of a process that leads to the reauthorization, re-creation, and funding of the Administrative Conference.

Mr. CANNON. Thank you, Professor. 

Ms. Payton, would you—we have only one microphone but it 

works, which is nice. 

STATEMENT OF PROFESSOR SALLYANNE PAYTON, WILLIAM W. 

COOK PROFESSOR OF LAW, THE UNIVERSITY OF MICHIGAN 

LAW SCHOOL, ON BEHALF OF NATIONAL ACADEMY OF PUBLIC ADMINISTRATION 

Ms. PAYTON. I will try not to say anything too startling. 

Mr. Chairman, Members of the Committee, thank you for inviting me to testify on the reauthorization of the Administrative Conference of the United States. I am the Cook Professor of Law at the 

University of Michigan Law School. As you know, I served on the 

Administrative Conference continuously for five presidential administrations. I am a past Chair of the Administrative Law Section 

of the American Association of Law Schools, and since 1998 I have 

been a Fellow of the National Academy of Public Administration 

and a member of the Standing Panel on Executive Organization 

and Management, which I will refer to as EOM panel. 

I currently serve as the Director of the Academy. The Academy 

itself does not take positions on pending legislation. That function 

is located in the standing panels, such as the EOM panel, and I 

am here on behalf of the EOM panel. I am expressing today the 

management view, if you will, of the Administrative Conference. I 

have coordinated my testimony with Sally Katzen, who has contributed a statement for the record, and I concur in her views. Since 

she cannot be here in person today she has authorized me to speak 

to any questions regarding her statement. 

My testimony reflects also the strong views of the EOM panel, 

which recently met and after deliberation voted to express its 

strong support of restoring the Administrative Conference. The 

EOM panel includes many present and former senior managers of 

the Government. I must say that this is the first time I have ever 

known my colleagues on the EOM panel to express enthusiasm for 

lawyers, and so the position of the panel should be taken as a 

measure of this wide esteem in which ACUS is held. 

You have my written statement. In these oral remarks the principal point I want to make is that good administrative process and 

procedure are part of the critical infrastructure of Government. 

Like other infrastructure, they are likely to be taken for granted 

and neglected until problems build into crises or something major 

goes wrong. In the Government of the United States, only ACUS 

ever had the mission of engaging in constant correction and improvement of the procedure and process infrastructure. 

ACUS was what we call a community of practice. It was a community of practice of administrative law professionals. Its members 

spanned all the agencies, administrations and different political 


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parties. It included both academicians and practitioners which 

fused public and private. ACUS was led from the top. The roster 

of its public members and consultants was a virtual Who’s Who of 

administrative law. 

Moreover, these luminaries worked hard. ACUS projects for the 

most part were difficult, technical and esoteric, some would say 

boring, the ordinary work of tending after the administrative process. 

Now many of the lawyers who are supporting restoration of 

ACUS have spoken warmly of the bipartisan and collegiality of the 

Conference. From a management perspective, the attractiveness of 

ACUS to the professional community meant that prominent and 

distinguished people were willing for the sake of that collegiality to 

focus on operational issues that would otherwise never have 

claimed their attention. The Government benefited enormously by 

assembling and hosting ACUS. It stimulated the members of the 

Conference to do the work of the Government. 

Now, I don’t mean that ACUS was perfect, only that it was, as 

we now know, irreplaceable. The EOM panel therefore encourages 

restoring it with its virtues intact. 

Now, our analysis of the relationship between ACUS’s structure 

and performance leads us to urge caution with respect to changing 

in any significant respect its role and responsibilities. We recognize 

that the world has changed since 1994 and so have the concerns 

of administrative lawyers, as Professor Edles just pointed out. We 

have moved off the old agenda on to a new agenda, but it is still 

the agenda of administrative law. We believe that the task of deciding how to retain the old virtues of ACUS, while meeting new challenges, can safely and appropriately be entrusted to the administrative law community, itself operating under its original and quite 

flexible ACUS charter. 

The EOM panel therefore supports restoration of ACUS under its 

original charter. I thank the Subcommittee for reexamining this 

issue. You are doing a great service. 

[The prepared statement of Ms. Payton follows:]

PREPARED STATEMENT OF SALLYANNE PAYTON

Mr. Chairman and Members of the Subcommittee: 

I greatly appreciate your invitation to testify in favor of the reauthorization of the 

Administrative Conference of the United States, known as ACUS or ‘‘the Conference.’’ I am the William W. Cook Professor of Law at the University of Michigan 

Law School. I served on the Conference continuously through five presidential administrations as a Public Member and then a Senior Fellow, beginning in 1978 and 

ending in 1995 when the Conference was disbanded. In 2001–2002 I was Chair of 

the American Association of Law Schools Section on Administrative Law. Since 1998 

I have been a Fellow of the National Academy of Public Administration and a member of its Standing Panel on Executive Organization and Management (EOM Standing Panel). I currently serve as a Director of the Academy. 

My testimony today has been coordinated with that of Sally Katzen, and I concur 

in her views. Since she cannot be here in person today she has authorized me to 

speak to any questions regarding her testimony. My testimony also reflects the 

views of the EOM Standing Panel, which recently met and deliberated on the question of restoring the Administrative Conference. The panel voted to express its 

strong view in support of reauthorization. I will focus these remarks on the reasons 

for this solid endorsement. 

One of the challenges of managing a government as diverse in mission and organization as is the Government of the United States is to locate responsibility for common functions where they can be performed most effectively at the appropriate 


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1This observation was a principal motivation for the creation of ACUS as a permanent body. 

Here is what Judge E. Barrett Prettyman wrote to President Kennedy after having led two committees studying the possibility of creating the Conference:

The heavy pressures on Government to discharge immediate responsibilities may at 

times rob administrators of the time needed for consideration of procedures. Imperfections in method . . . may acquire the protective coloration of familiarity; and the demands of the daily job may lessen the will to achieve change. . . . The committees of Congress, suitably concerned as they are with matters of substantive policy, can only 

sporadically occupy themselves with the details of methodological and organizational 

problems . . . Nor do we think that hope of major accomplishment lies in occasional 

studies by groups external to the Government. . . . The current need is for continuous 

attention to somewhat technical problems, rather than for public enlightenment concerning a few dark areas that cry for dramatic reforms. A discontinuous commission 

. . . is unlikely to have great impact upon the day-to-day functioning of the Federal 

agencies. Letter from Judge E. Barrett Prettyman to President John F. Kennedy (Dec. 

17, 1962) (urging establishment of permanent Administrative Conference) (on file with 

ACUS), cited in Testimony of Sally Katzen before the House Committee on the Judiciary 

Subcommittee on Administrative Law and Governmental Relations in Support of the Reauthorization of the Administrative Conference of the United States, April 21, 1994, re- printed in 8 ADMIN. L.J. AM. U. 649, 653 (1994) (emphasis supplied). 2 Id. at 652.

scale. Administrative processes and procedures are ubiquitous in government, but 

being matters of technique rather than substance they tend to claim a smaller share 

of the attention of agencies and the Congress than do more concrete and pressing 

concerns.1 They are not for that reason unimportant. It is through administrative 

processes and procedures that most people interact with government. These processes and procedures are part of the essential infrastructure of government, and 

continuous attention must be paid to them. The ability of government to conduct 

itself appropriately, and to monitor and improve its procedures and processes, is 

therefore a critical piece of organizational competence. It is true that the judiciary 

has power to review agency action at the behest of an appropriate party with a legally-protected interest, but judicial review is available for only the thinnest sliver 

of the work of government, and in any event the mission of the courts is to decide 

disputes and to focus on larger-scale institutional relationships, not to improve administrative systems.

There is thus a void, which the Administrative Conference was created to fill. The 

Conference was a remarkable institution. In the current argot of organizational theory, it would be called a ‘‘community of practice.’’ In her 1994 testimony in support 

of the reauthorization of ACUS, Sally Katzen described the Conference as it then 

existed:

By statutory design, a majority of the Administrative Conference’s members 

represent government departments and agencies. All major departments and 

agencies are represented and each department or agency chooses its own representative. The caliber of the individuals who represent these agencies attests 

to the importance that the agencies, as well as the Administration, assign to 

the Administrative Conference’s functions. . . . The government officials join 

forces with distinguished private citizens, called ‘‘public members’’—law professors, public interest lawyers, private practitioners, economists, public administrators—who volunteer their time and talent because they share the view that 

this unique public-private partnership significantly improves the way government regulates its citizens or delivers services to them. The Administrative 

Conference Act requires that the Administrative Conference chairman select 

members from the private sector who are ‘‘members of the practicing bar, scholars in the field of administrative law or government, or others specially informed by knowledge and experience with respect to federal administrative procedure.’’ . . . The Administrative Conference ha[d]s a long-standing tradition of 

private sector membership that crosses party and philosophical lines...2

I am sure that all of the witnesses before this Committee who have been on the 

private side of this public-private partnership would attest that serving as a Public 

Member of the Conference was challenging, the work being frequently complicated, 

esoteric and technical. Nonetheless, Public Members of startlingly distinguished professional standing viewed participation in the Conference as a high calling and 

worked their way devotedly, largely at their own personal expense, through procedural and process issues of which no notice was likely to be taken outside of the 

circle of administrative lawyers, and for which they would receive no credit. 

This willingness on the part of the leaders of the administrative law community 

to contribute personally to the work of ACUS was an expression of their commitment to improving the important below-the-radar processes that are critical to the 


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3 Administrative Conference of the United States, Recommendation 91–3: The Social Security 

Representative Payee Program, 1991 ACUS 17. 4 5 U.S.C. § 594 provides:

To carry out the purpose of this subchapter, the Administrative Conference of the United States 

may (1) study the efficiency, adequacy, and fairness of the administrative procedure used by administrative agencies in carrying out administrative programs....

5 U.S.C. § 592 (3) defines ‘‘administrative procedure:’’

‘‘administrative procedure’’ means procedure used in carrying out an administrative program 

and is to be broadly construed to include any aspect of agency organization, procedure, or management which may affect the equitable consideration of public and private interests, the fairness of agency decisions, the speed of agency action, and the relationship of operating methods 

to later judicial review, but does not include the scope of agency responsibility as established 

by law or matters of substantive policy committed by law to agency discretion.

well-being of those who have to depend on or do business with government. I think, 

for example, of the work that ACUS did on the process for designating ‘‘representative payees’’ for Social Security recipients who cannot care for themselves but who 

have not been declared legally incompetent.3 What was unique about the Conference 

was that highly-compensated lawyers, leading academicians who specialized in constitutional theory, and sitting federal judges who turned out to be future Supreme 

Court Justices, among others, believed that making sure that processes of this sort 

were tailored correctly was worth their time, because these processes mattered to 

the public. 

Even partisan competition was subordinated to the members’ determination to 

achieve good administrative principle and practice. The Conference’s bipartisanship 

was so pervasive that it functioned as nonpartisanship, in the tradition of ‘‘good government.’’

Like any organized community of practice, the Conference maintained an informal 

institutional memory and a repository of useful information that was made available 

to those who sought its advice, whether or not they were located in the Executive 

Branch. It is worth remembering in this context that at any given time a substantial fraction of the people who have responsibility for designing, conducting or reforming administrative processes and procedures are new to their jobs, or have 

never had occasion to think about the type of issues confronting them. There are 

new Hill staffers and new independent agency commissioners, who need a source 

of trustworthy information and advice. Turnover among agency officials produces a 

constant inflow of people who need to be informed about their responsibilities. Best 

practices need to be identified and information about them disseminated. No individual agency is in a position to maintain a comprehensive information base on federal administrative process and procedure; nor can any administrative or other operating agency always take on the role of thinking conceptually about its own work 

in the context of general principles of administrative process. Responsibility for 

these functions must be centralized; it must be prestigious; and it must be impartial. The Conference was all of these things. Some of the greatest praise for ACUS 

has come from Members of Congress who had occasion to call on it for information 

and advice. Many members of the EOM Standing Panel have had similar experiences, and view ACUS as having been a highly useful organization. 

The case for restoring ACUS thus seems overwhelming to my colleagues on the 

EOM Standing Panel, because we have great respect for its unique—and, as we 

have observed during the years since its demise, irreplaceable—function. Much has 

changed during the past ten years, however, and we understand that among those 

who favor placing ACUS back in service there might be some sentiment for modifying its charter to give the organization a broader role and responsibility, and an 

instruction to take on matters of greater salience. On this point the members of the 

EOM Standing Panel were unable to agree among ourselves, and we urge the Committee to be cautious. It is not intrinsically difficult to attract high-level attention 

to high-visibility issues; it is much more difficult to attract high-level attention to 

low-visibility issues. The genius of ACUS was that although its charter was (and 

still is) flexible enough to encompass virtually any subject that can plausibly be 

characterized as a matter of ‘‘agency organization, procedure, or management’’ 4, as 

distinct from pure substance, its broadly representative structure drove it away 

from issues that might have provoked partisan strife and toward addressing a continuous stream of low-salience problems that were important to people who actually 

had to deal with the government. As we have learned during the years of its absence, if ACUS does not do this work, no one will. We urge the Committee to reauthorize ACUS using the existing language of its charter, to put ACUS back together 


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as nearly as possible just as it was, and to allow ACUS to find its own way in its 

new environment.

I thank the Subcommittee for reexamining this issue and for considering the restoration of the Administrative Conference.

Mr. CANNON. Thank you. We appreciate your comments. 

Mr. CHABOT. Mr. Chairman. 

Mr. CANNON. Yes. 

Mr. CHABOT. If I could speak out of order for just a moment. 

Mr. CANNON. Absolutely. Do you have other commitments? 

Mr. CHABOT. Yes, I have a hearing that I have to attend on Iran 

nuclear proliferation. I have heard the other three testify. Professor 

Harter, I have yours in my hand. I assure you I will read it this 

afternoon. So I apologize. 

Mr. CANNON. Thank you. More time for questions for us. Professor Harter. 

STATEMENT OF PROFESSOR PHILIP J. HARTER, EARL F. NELSON PROFESSOR OF LAW, CENTER FOR THE STUDY OF DISPUTE RESOLUTION, UNIVERSITY OF MISSOURI LAW SCHOOL 

Mr. HARTER. Well, this is the part of the schizophrenia of this 

issue. 

Mr. CANNON. We would hope that the structure that we come up 

with for ACUS is simple and flexible enough to accommodate the 

problems that we have in daily life, like getting our light system 

to work. 

Mr. HARTER. Let me begin by saying that after a—my title of 

Earl F. Nelson Professor of Law is very much of a newbie. I have 

spent 35 years here in Washington working with agencies, among 

them, and in that I have observed them in action, and I do want 

to point out that that is two words. And I am here to wholeheartedly support the resurrection of the Administrative Conference, and I want to do it really on two grounds. One is that I 

think that the reestablishment would not only save the Government significant sums of money. Clearly I think we need it as an 

investment, but also that it would enhance democratic or, if you 

want to be nonpartisan about it, civic republican values in America, of just how the people participate in the Government. 

You look back, since the APA was enacted in 1946, significant 

changes have taken place in the management structure of the Federal Government. There are new forms, major new forms of publicprivate interaction, reliance on the private sector with oversight by 

Government, new developments and relationships between Federal 

and State governments, new perceptions of how the Government 

should and should not function when making important decisions 

in relationship with individuals in the private sector. If you think 

about it, agencies in each individual agency, entity, each individual 

subagencies, hundreds of them, must confront each of those demands daily, each time they take action, and so similar choices 

must be made over and over and over again in Washington. Agencies lack the way of finding out what works and what doesn’t work. 

Let me go over some specifics as to some of the needs. I was recently—gave a little pep talk to an agency on how negotiated rulemaking works and whatever, and a couple of representatives from 

other agencies heard that I was going to do it and asked if they 


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could attend, and the answer was no. Bizarre. It was a lack of 

sharing experiences across agencies to support insights. 

One of the major provisions of the Administrative Resolution Act 

is its confidentiality provision. It was one of the leading early provisions. It had some ambiguity, some interpretation. How do you 

dovetail mandatory confidentiality at agencies with inspector generals, how various parts work. 

What do we have? Federal Government set up a committee to 

talk about guidance for confidentiality and dispute resolution proceedings. The American Bar Association set up a committee to talk 

about confidentiality in administrative dispute resolution proceedings. Now, even though these parties are going to be in the 

same proceeding, those two committees don’t talk to each other. 

They come up with different advice. There is no way to share the 

insights or to come up with a common set of goals on how to implement. The communication has broken down. 

Second, if you go through and look at an awful lot of the recent 

legislation, that because there is no ACUS, Congress is ad hocking 

it. It will require agencies—well, go talk to the National Research 

Council. There is no continuity. There is no standing membership. 

There is no particular insight into the broad perception, so let’s just 

go out and find out individual aspects. 

One that I found interesting was American University held a 

major conference on electronic rulemaking earlier in January. One 

of the major reasons given for expanding e-rulemaking, and certainly it has major aspects in e-data acquisition and management 

but another aspect is the accessibility of the American public, an 

ability to participate in rulemaking via the Internet. And I will tell 

you when they were talking about what they were going to do it 

just sent shivers down my spine. If implemented without care, it 

will just basically disenfranchise individuals because what they are 

talking about is establishing a dialogue for rulemaking, basically 

an ad hoc, negotiated rulemaking. What individual has the time to 

be there? Only the organized interests are going to be on the other 

end of that communication. It will be in fact ex parte communication in broad daylight. 

We broke down into work groups and in my work group that I 

chaired, and it was really a bizarre, you know, which turned out 

to be a broadly representative group—was strongly of the view that 

the Government needed to establish an advisory committee of public and private people to advise on public participation. After all, 

the whole name of it is how the private people participate in Government. Wouldn’t it be nice if the Government asked the private 

people how it ought to work? And so based on that, I sent a petition, or a letter I guess actually, to three of the leaders of the erulemaking effort suggesting that an establishment of an advisory 

committee could be a good idea, to which I got a resounding nothing. Not an answer. I was told by somebody who was at the meeting that my answer said all they want to do is take a hold and take 

it away. It was some kind of pejorative answer. All of those issues 

would be addressed by an Administrative Conference wishing to 

have a dialogue among the parties, desperately. 

So what has happened is the private sector is talking to themselves, the Government is talking to themselves without bridging, 


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and we have got to get over that. That is what we are talking 

about in the e-rulemaking—I mean in the EU process. 

I think as to the membership, I would—although I think that the 

statute is fine, I would urge a much broader membership of—I 

mean if you listen to the four of us the words ‘‘administrative law’’ creep in a lot. It isn’t just administrative law. It is administration. 

It is the Administrative Conference, not the Administrative Law 

Conference. I think you need experts in management. You need 

economists. You need public administrators. You need all levels of 

Government. You need political agencies, senior service, and you 

need the staff. After all, it is the staff that is going to implement 

all of that and I think the staff has been woefully underrepresented 

in the Conference. 

So I would hope that in its new incarnation that it be really 

broadly represented of diverse interests that would be affected by 

it. 

Lastly, the question of appropriations. I would admit to a mistake, an error in my prepared testimony that I sort of abstracted, 

which I think the current value of the original appropriation would 

be $10 million, and I was wrong as to what the original appropriation is. But I still think that is a good figure, because I think that 

you really do require resources to go out and do the sophisticated 

stuff, to answer a lot of the questions that have been raised by you 

and by the other panelists, and again I think that will be an investment well made. Iurge your action and I am excited that you 

are undertaking this. 

[The prepared statement of Mr. Harter follows:]

PREPARED STATEMENT OF PHILIP J. HARTER

My name is Philip J. Harter. I am the Earl F. Nelson Professor of Law at the 

Center for the Study of Dispute Resolution at the University of Missouri—Columbia 

School of Law. I whole heartedly support the resurrection of the Administrative 

Conference: Its re-establishment would not only save the government significant 

sums of money, it would also enhance democratic—or, to be non-partisan about it, 

civic republican—government. 

BACKGROUND AND PERSPECTIVE

I would like to provide a bit of my background since it forms the perspective for 

the observations that follow. To a very real extent, the Administrative Conference 

has determined the course of my professional life. Thirty five years ago right now 

I was a research assistant to Professor Roger Cramton at the University of Michigan Law School. The project we were working on ultimately became ACUS Recommendation 2, and Professor Cramton became Chair of ACUS. I later became Senior Staff Attorney at the Conference and developed a program on regulatory reform. 

After I entered private practice, I was subsequently a consultant to the ABA’s Coordinating Committee on Regulatory Reform that played such a crucial role in the 

debates of the late 70s and early 80s. In the mid-90s I chaired that committee, and 

in that capacity I had the honor to work closely with this Committee. 

I have been a consultant to the Conference on several occasions. Probably most 

notably, I developed negotiated rulemaking as a consultant to ACUS and wrote a 

series of articles on the use of dispute resolution techniques by the Federal Government. Those articles resulted in the Negotiated Rulemaking Act and the Administrative Dispute Resolution Act. Through its recommendations, oversight, and consultations, the Conference played a pivotal role in improving the way government 

agencies make decisions affecting the public. 

THE DESPERATE NEED FOR ACUS

The processes government agencies use to make decisions are complex, difficult, 

and continually evolving. The flexible, scant procedures outlined in the Administrative Procedure Act have been supplemented by numerous Executive Orders, judicial 


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decisions, and ad hoc statutory requirements. Moreover, since the APA was enacted 

in 1946 significant changes have taken place in the management structure of the 

Federal government, and there are new forms of public-private interaction, new developments in the relationship between Federal and State governments, and new 

perceptions as to how the government should function when making important decisions. Officials in each agency must confront all of these demands each time they 

take action. As a result, similar choices must be made over and over again in the 

halls of Washington about how to make decisions. 

Oftentimes officials have little information as to how well a program implemented 

by another agency works or little guidance as to how the duties could be successfully 

discharged or major pitfalls avoided. Those who deal regularly with multiple agencies have witnessed the dire need for some means by which agencies can share insights and experiences and to gain expert advice as to the best ways to go about 

the public’s business. Without it, agencies necessarily incur high transaction costs 

by repeatedly reinventing similar procedures; the lack also means the best ideas are 

not recognized, strengthened, and used more widely nor the worst improved or discarded. 

Further, advice would be helpful both to Congress and the agencies as to the potential structure of new ways to achieve public goals and to respond to public inquiries and criticisms about how individual agencies have functioned. And, Congress 

and the agencies alike could benefit from the insights and advice of those who are 

directly affected by the administrative process and from those who study it from a 

variety of perspectives. 

Since the demise of ACUS, we lack the means to refine how we do the public’s business: no office or organization regularly convenes a broadly representative group 

of experts to deliberate about how to improve the quality of the administrative process. A permanent entity such as renewed ACUS is needed that can be devoted to 

solving the problems of excess costs, delays, and burdens that are imposed upon the 

agencies and upon the public by inadequate, inefficient, and duplicative government 

processes. Individual agencies, while they have the ability to review their own performance, 

lack the capacity to make cross-cutting agency reforms and comparisons. Furthermore, agencies acting alone cannot make the necessary procedural reforms for the 

improvement of administrative process as a whole. And, agencies usually do not 

have the incentive, will, or resources to conduct a thorough self-examination to see 

if they could do things better. 

A forum for collegial self-critique and development of effective administrative 

practices is eminently desirable. Moreover, one is needed that can bring a sense of 

unity to administrative agencies and promote an appropriate degree of uniformity 

in their procedures. Congress should, therefore, establish such an institution that 

will systematically seek to promote improvements in the administrative process: 

The Administrative Conference is just such an agency. 

The primary purpose of revitalized ACUS would be to care for the improvement 

of the administrative process. In doing so, it would examine government procedures 

and practices, with the goal being to search for new ways of helping governmental 

agencies function more fairly, efficiently, and effectively. The organization could 

play a leading role in the development of domestic administrative law doctrines. 

One of its foremost functions would be to review and evaluate whether the basic 

law governing administrative procedure, the Administrative Procedure Act (‘‘APA’’), 

as well as other procedural requirements should be revised and updated. It could 

also arrange for the interchange among administrative agencies of information potentially useful in improving administrative procedures. Another role it could discharge would be the preparation of resource documents, bibliographies, and advice 

and recommendations on various topics confronted by agencies. Although now aging, 

ACUS handbooks are on the desks of many of the leaders in the administrative 

process on both sides of the great public-private divide. 

The new ACUS could also focus on the more minute details of the administrative 

process as well. Specifically, it could study and adopt recommendations concerning 

better rule-making procedures, or ways to avoid legal technicalities, controversies, 

and delays through agency use of alternative means of dispute resolution. For example, the exploding use of the internet and other forms of electronic communication 

present wonderful opportunities for increasing the information available to our citizens and their participation in our affairs. But, tapping these resources and making 

sure they work effectively and efficiently is itself a daunting task. A recent conference on e-rulemaking held at American University pointed out many potential 

problems that could arise if the procedures used for e-rulemaking were not carefully 

developed; the public at large could effectively be disenfranchised. Moreover, a 

strong recommendation was made that since much of the work on e-rulemaking is 


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being done in the name of enhancing public participation, it would help if those in 

the government actually consulted with interested parties in the private sector. Yet, 

multiple requests to leaders of the e-rulemaking effort for the establishment of an 

advisory committee that could provide such advice and make recommendations to 

protect against abuse went unanswered. That experience alone points to the dire 

need for an oversight body. 

Another focus would be to collect information and statistics from administrative 

agencies and to publish reports that could be useful for evaluating and improving 

administrative procedure. It could also evaluate the judicial review of agency actions 

and make recommendations for its improvement. A major issue confronting the administrative process that has emerged forcibly in the past few years is the delicate 

balance of open government in a time of concern over national security and the 

means by which requirements are imposed on our citizens and businesses to protect 

our homeland. 

Another purpose for renewing ACUS could be to serve as a regulatory ombuds. 

It could in appropriate circumstances investigate and respond to individual complaints and undertake a systematic performance review of various government agencies, especially of those agencies with serious operational and programmatic problems. Individual agencies themselves often resist any critical self-evaluation in response to public complaints due to burdensome workloads or a failure to admit the 

flaws in one’s own prior decisions. An independent, objective entity, unfettered by 

internal agency politics and its own inertia, can offer meaningful recommendations 

to improve the operational structure of administrative agencies. 

We also lack a repository on administrative processes that the various state governments could call upon for high quality administrative procedural advice. ACUS 

could consider ways to improve federal, state, and local relations in different areas, 

including those in which state and local agencies administer federal programs. The 

organization could attempt to promote cooperation and coordination on interstate 

administrative procedural matters to foster a responsible and efficient administrative process among the several states. The entity would be equipped to advise state 

agencies and their staffs of significant legal developments and emerging trends occurring in the area of administrative procedure. 

Another major issue in administrative procedure comes from the international 

harmonization of laws and regulations. As a result of harmonization, many domestic 

regulations will need to be changed to bring them into conformity with the international requirements. Just how that is to be done is a complex, controversial issue 

that needs to be addressed. 

ACUS was structured to develop objective, non-partisan analysis and advice. It 

had sufficient independence from particular policy-based responsibilities, and hence 

its recommendations were given credence and were seen as a detached analysis. The 

structural makeup could bring together an inter-disciplinary collection of experts in 

the administrative process. Membership would preferably include: committed senior 

management agency officials, professional agency staff, representatives of diverse 

perspectives the private sector who deal frequently with agencies, leaders of public 

interest organizations, highly regarded scholars from a variety of disciplines, and respected jurists. The problems that ACUS should address include management as 

well as legal issues. Thus, its panel of experts should be comprised of members with 

both legal backgrounds and those who may not have legal training, such as management, public administration, political science, dispute resolution, and law and economics. State interests should also be included in the entity’s membership by sending representatives from certain state agencies or state organizations. 

One final point should be made: Although it is currently politically unfashionable 

to suggest that funding should be increased, that is clearly the case here. Throughout its life, ACUS was a huge bargain for the United States. But towards the end, 

inflation had taken a huge toll on its stationary authorization, and it was not able 

to function to the full extent of its potential. I suggest strongly that the in the process of re-establishing the Conference, the appropriate level of funding is the amount 

of the original statute updated to reflect inflation. My own, back of the envelope calculation is that that figure would be about $10 million. From 35 years of observing 

the Federal government in action (note that’s two words), I firmly believe that such 

an amount should be viewed as an investment that would be paid back many times 

over. Even if it were not, the improved quality of the decision making process would 

be more than worth it. For example, what number would anyone put on the costs 

to our society if the procedures that are bursting upon us from the electronic age 

and globalization are not implemented appropriately? This is a tiny price. 

The new ACUS will help significantly in ensuring that our public decisions are 

made effectively, efficiently, and fairly. That is clearly a major undertaking, but one 

ACUS is structured to discharge for the benefit of us all.


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Mr. CANNON. Thank you, Professor. We only have two Members 

here but we are going to strictly abide by the 5-minute rule and 

I will—you poke me, because I think we are going to have several 

rounds and then I would probably do better if we go back and forth 

in that fashion. 

Now, you know, I have a brother who actually served on the 

ACUS twice and you know him, Professor Harter. 

Mr. HARTER. Can I tell a wonderful story? 

Mr. CANNON. Yeah, you can, but let me ask a question first. You 

worked on neg reg a lot, and he keeps telling me that he is solely 

responsible. Can you clarify the record on his role? 

Mr. HARTER. Well, it is certainly true. We were on a panel together and it really resulted in one of those lines that I absolutely 

love. And I can’t remember how the line came up, but we reached 

a disagreement. He said, well, wait a minute, I have the authority 

to issue that rule. Why should I work with this committee? And I 

turned to him—this is all off the record—and I said you have the 

authority but you lack the power. And that is when he became 

really very much of a proponent of the whole idea of working it out 

with the political constituents. 

Mr. CANNON. That was between times, I think, on the ACUS. 

Thanks. Let me just ask a question that I would like you to respond to and then Ms. Payton, because Ms. Payton is saying no 

changes and you are suggesting a substantial broadening to bring 

in professionals from other scientific areas. 

I take it you are actually thinking in terms of an increased appropriation to have more staff because you talked about staff in 

particular, and then going to all levels of Government. Do you want 

to flesh that out a little bit and then, Ms. Payton, I would like to 

get your view on that. 

Mr. HARTER. I think that the structure at the Conference both 

in terms of numbers and everything is probably okay. I would just 

again in the appointment process, would look for more diversity of 

professional and diversity in general and I mean, I think some of 

the serious management expertise, which I think would—really a 

little more economic ideas, a little more, again, different levels of 

Government, State representatives, maybe a NAAG or State Governors. I think it would because of the public-private. And I think 

that on the staff level, having a different perspective, and I think 

some of the issues that both—the committee and here have talked 

about, we are facing huge scientific issues. So I think having some 

degree of a technical ability would also help as well. So I don’t 

think it needs to be major, and I think the structure still works. 

Mr. CANNON. Is that consistent with what you are thinking, Ms. 

Payton? 

Ms. PAYTON. Well, the way I read the charter, I thought that 

there was authority to appoint those kinds people as public members anyway. 

Mr. HARTER. Oh, absolutely. 

Ms. PAYTON. And I also think that ACUS has the authority to 

appoint to its committees people who are not public members of 

ACUS. I believe we have done that. We can. They can. 


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Mr. CANNON. So you believe that when you talk about the group 

could regulate itself, you believe that there is plenty of latitude in 

the current charter to do the kinds of things? 

Ms. PAYTON. That is the way I see it. Now Gary may have more. 

Mr. EDLES. I think that is absolutely right. I mean it does, the 

statute does indicate that there are to be private citizens, members 

of the private bar, but also other experts in the administrative 

process. And historically ACUS did have economists. We often had 

members, I remember—I believe David Piddle, who was then a 

Consumer Products Safety Commissioner, who was basically an engineer, who participated actively in ACUS activities. So we did 

have representation even in the old days of people who were not 

lawyers, although I must say it was fundamentally, I think, a lawyers organization. 

Mr. CANNON. Mr. Gray. 

Mr. GRAY. I think in terms of the studies that were commissioned, they could be studies by economists or scientists. There was 

no limit. It wasn’t only study by lawyers. So there was plenty of 

access to expertise outside the law. 

Mr. CANNON. Good. Maybe in this context can we talk about 

funding, because when you go outside, I mean what you had in 

ACUS was all these incredibly brilliant people who came together 

and participated with relatively small budgets. But when you did 

study on the outside you commissioned those funds for those and 

that cost money. I suspect what we will do is include in our report 

language the idea that we should be looking at these broad groups 

of people to be representative. But do we need more money than 

what we are talking about so we can do these kinds of studies, and 

maybe, Mr. Gray, you can take that question. 

Mr. GRAY. I really would like to get Gary’s perspective on this, 

but I think it would be very useful to have more funding because 

our outreach would be much broader. I have taken as an example, 

what I suggested, which may not be workable, but this EU comparative project I think would be ultimately better done by an impartial entity like ACUS rather than a private entity with questions about its funding. It is going to cost a hundred thousand dollars to do that. 

Mr. CANNON. I am sorry. How much? 

Mr. GRAY. A couple of $100,000 and that is not the kind of thing 

the private sector can come up with without raising questions 

about where it came from, and yet it is not that much, it seems 

to me, for it be funded out of something like that because it is not 

a backbreaking, seems to me, figure. All I know is there are all 

kinds of budget constraints. 

Mr. CANNON. I would like to pursue this topic a little bit more 

so we can get some clarity on the record, but my 5 minutes has expired and we will come back to that. 

Mr. Watt, would you like to take 5 minutes? 

Mr. WATT. Thank you, Mr. Chairman. Let me just play devil’s 

advocate here for a little bit, because we have now heard from six 

witnesses, all of whom have been vigorously in support of reauthorizing, and while I certainly share that view, one of our obligations, 

I think, and in the process that I described and referred to in my 

opening statement works best, we get both sides of an issue and 


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there has not been any witness yet who has said this would be a 

terrible idea. 

Let me be further provocative to—and probably counterintuitive 

to assume that there was a rational basis for terminating the Administrative Conference of United States. When I look back and realize that that happened in 1995, I kind of have to step back from 

that because there was a lot of stuff happening in 1995 that was 

not based on any rational evaluation. So I have got an opportunity 

here to put all of this together because I have got people, I think, 

who understand the history of how we got here. 

What was the rationale, if there was a rationale, for terminating 

this agency? 

Mr. EDLES. I can tell you what the House Appropriations Committee report said, which is simply that ACUS had completed its 

mission as of 1995. As to whether there were other rationales, I 

can only say what the public report said. 

Mr. WATT. Were there any kind of hearings to document the 

completion of that mission or any discussion to build a record in 

support of that conclusion? 

Mr. EDLES. There was a hearing—there were hearings, I think, 

before this Committee which fundamentally came out supporting 

the Administrative Conference. We did have our usual, you know, 

hour and a half or 2 hours before the Subcommittee on Appropriations. That was the oversight provided for us insofar as our annual 

appropriation was concerned and it was presumably on the 

strength of that, you know, hour and a half meeting and information we had submitted in which the Subcommittee came to the conclusion that we should be—we should no longer be funded. But I 

think it was an era, quite frankly, in which there was a looking 

around to see if there could be widespread Government retrenchment. 

Mr. WATT. This was reform. 

Mr. EDLES. And our little agency, I think, is what came up in 

that time. 

Mr. WATT. Mr. Harter, you look like you are just chomping at the 

bit——

Mr. HARTER. No, I am not sure I am chomping. 

Mr. WATT.—to respond to this question. 

Mr. HARTER. I will add a little bit to the discussion, and in my 

view I think it was time that the Conference needed to be revitalized. I mean I think that it needed to be energized and what not. 

I am not sure that I would take the boot heel that was taken to 

it, I mean to this kind of the ultimate one. But I think it needed 

resparking along the lines that I think a lot of us have been talking 

about here, and I think in part my view is that it lacked as much 

of the energetic and enthusiastic support at that time that you are 

seeing now for the reconstruction of it. 

I mean, I think that a lot of issues have emerged that are not 

getting addressed, and so it might be that this had become slightly 

torpid in that way. 

Mr. WATT. Mr. Gray, you were—you said you testified at a hearing where this was evaluated. Were there compelling reasons advanced on the opposite side of where you were? You were in favor 

of reauthorizing, according to your testimony. Were there other 


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1The correct reference to the article cited by Professor Payton in her testimony is as follows: 

Toni M. Fine, A Legislative Analysis of the Demise of the Administrative Conference of the 

United States, 30 Ariz. St. L. J. 19 (1998). 

people on the other side who were making some compelling arguments to terminate? 

Mr. GRAY. Well, I have to be candid since I am testifying. There 

were interests, private interests, if you will, that were opposed to 

the reauthorization. But they never really surfaced publicly with 

their arguments. I think what was public was the testimony rather 

to the contrary that it should be reauthorized. 

Mr. WATT. Okay. 

Mr. CANNON. We will come back for another round. Did you want 

to add something to that, Ms. Payton? 

Ms. PAYTON. Well, I think that everyone here at the witness 

table is being reluctant to say what we all know. May I suggest 

that——

Mr. WATT. I am prone to go to meddling in stuff that makes people have to come to grips with that. 

Ms. PAYTON. Right. Well, I think you might find it useful to read 

at least some excerpts of a law review article by Toni Fine, which 

appeared in the U.S. Law Review 1 a little while ago, that really 

goes to the legislative issues of the demise of ACUS. You would 

find that very useful in its meticulous detail. 

Mr. CANNON. Ms. Payton, could you make that article available 

for our review or at least give us the citation so we would like to 

have that be part of the record? 

Ms. PAYTON. Certainly. 

Mr. CANNON. Thank you. Just for the record you should be aware 

that the Administrative Law Subcommittee had a hearing on 

ACUS and reported out that language to reauthorize it when the 

Appropriations Committee decided not to. I have actually talked to 

people who were engaged in that process, both Democrat and Republicans, and they don’t remember it. I think this is just—I would 

love to suggest the point of all that is that ACUS’s work was not 

widely understood beyond the people that were involved, and I 

would hope that one of the agenda items, one of the things that the 

ACUS would do would be to have staff to make sure that Congress 

understands what they are doing. 

I don’t think we have any real serious opposition to reestablishing ACUS short of that. We were talking about funding a bit 

ago, and in my opening statement we talked about a couple of 

other projects that ACUS did over a 28-year period of time and we 

are talking about this study. 

Mr. Gray, do you think it would cost $100,000—I think it would 

be at least that—to do that kind of depth that we want to do? How 

many studies—given the kind of workload of 28 years, you are 

looking at 10 or fewer series of projects—how many studies should 

we be looking at? One per year, one every other year, five per year? 

Do you have any sense of how much ACUS can do and how much? 

Mr. GRAY. Well, I think because it has not been around for nearly 10 years there is a backlog of things that need to be looked at. 

I mentioned just three of them, including in addition to the European Union project that come to my mind, and in dealing with the 

quality of purity, which are related topics. So perversely it might 


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take more to get it underway and make the backlog through of 

things that need to be looked at, and it might then drop afterwards. 

Again I look to Gary. I think he ran this. I was on the council, 

but I wasn’t involved in daily administration, and I think you had 

a better answer. 

Mr. CANNON. Let me just say here that I agree with your analysis. You may have a big need that may trail off, and so my sense 

is that when we are talking $3 million you might need to pick it 

up a little bit so that we authorize enough to actually do what 

needs to be done? 

Mr. EDLES. Yeah. Over my period, 1987 to 1995, I think we probably tackled a dozen fundamental, major projects each year. I think 

a couple points on the value here. One is that we—all the private 

sector members who participated did so pro bono. I mean, people 

like Boyden Gray did not get their hourly rate when they did work 

for the agency. They did all of that as volunteers and did a lot of 

hard work as volunteers. Secondly, the law professors by and large, 

although some of them were not law professors who served as consultants to ACUS, never really got market rates for what they were 

doing. There was first of all, their desire to have entree to Government agencies, which they got through the Administrative Conference, which they could not have gotten if they were just a law 

professor doing a study of some agency. They would not have gotten a hospitable relationship of the type that they got because of 

ACUS. So they were eager to do their projects through the Administrative Conference, and the Administrative Conference on the 

other side was quite willing to have them publish their studies in 

an independent law environment. So through that sort of symbiotic 

relationship we managed to get them at well below market rates. 

And I think our projects, we used to fund them in the range of 

$10,000. I mean, things of that nature. I think some probably as 

little as $5 or $6,000. Maybe some were a little more pricey if they 

had to be done fast or if there was more than one consultant that 

needed to be used. But, you know, we were not talking in the hundreds of thousands of dollars for individual consulting projects the 

way the Government does normally. 

[3:30 p.m.] 

Mr. CANNON. Thank you. 

Professor Harter, I resonated with your personal comments about 

the Internet. I would like to go to you. 

You talked about the Internet rulemaking and what essentially 

becomes ex parte communications in the open. In the last 4 days, 

I have had four opinion pieces or opinion page articles in the Washington Journal about me and what I am doing on immigration; and 

that is sort of cool, except there are at least a dozen and probably 

100 Web sites out there that are saying horrible things about me. 

And I looked a little bit, or attempted to look, but there is no way 

on the face of the Earth that I could respond to all that is said by 

people who don’t like what I stand for and do on immigration. 

How do you deal in a world of information with people who want 

to see things—how do you deal with that? Nobody has the resources except the fanatic or the corporation that has the money 


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to do it. So I am impressed by your thinking about that, and I have 

been thinking about that. 

We have had issues on the Forest Service where we had 2 million comment, because they are organized. They are in environmental groups. And the other side, maybe you had 50,000 barbers 

who inarticulately got online and said I don’t like what they are 

suggesting. And so you weigh those which we don’t do but we do 

do and you come up with skewed decisions. 

You obviously have thought about this a little bit. Would you 

mind commenting about what we do with the Internet? 

And secondly, both of you, Ms. Payton, is the structure—the current structure of ACUS sufficient to deal with these kinds of challenges? 

Mr. HARTER. I am not sure I can address the technical aspects 

of the Internet. There is a lot of thinking going on about it; and, 

in fact, the Forest Service rule is one that is commonly used in 

talking about, well, let us have the computer screen the rule. The 

computers will read the 2 million rules and tell you what the various comments were. 

I think what my point is, is that what really—and NSF has a 

program that is looking at it. American University has a program 

that is looking at it. There is one inside the Government that is 

sponsored by the White House and EPA that is looking at it. But 

these groups need to talk to each other, and the public at large 

needs to participate in some of the discussions. 

I mean, I gather, from talking to people who have been deeply 

involved in it, this whole issue of the response, the ex parte in the 

open is really not looking at it. They are looking at the technology, 

as opposed to what is happening with—the average person can’t 

keep up with it. So I don’t have an answer to it. 

Those of us who do what I do often quip: I don’t do substance, 

I do procedure. And what is really needed, I think, is an advisory 

committee to talk about it and come up with guidelines on it that 

will take these issues into account. It strikes me that is the perfect 

vehicle to do it. It is built that way and comes up with the recommendations that are broadly representative, so it is the perfect 

vehicle to do that. When I raised the prospect of an advisory committee, I didn’t get the courtesy of a response. 

Mr. CANNON. You think ACUS, the way it was set up, could handle it? 

Mr. HARTER. Absolutely. They may need a new committee, but 

that is easy, and that takes 4 minutes. 

Ms. PAYTON. Let me muse a little in a way that I don’t ordinarily 

do on the record. 

The revised ACUS needs to have both the range of interests represented that allows it to be a kind of very high-status, diverse 

group. On the other hand, it needs to be nimble and flexible and 

needs to be able to do something about all these problems; and it 

needs to be able to respond in a shorter time frame than having 

recommendations deliberated at a plenary session. 

I guess the one thing I would suggest is that recommendations 

be allowed to be promulgated—to be made by groups that are 

smaller than the plenary session. Now that is how the National 


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Academy of Sciences does it, and that is how the National Academy 

of Public Administration does it. 

I am not taking a position on behalf of NAPA as a whole. The 

organization that is authorized to comment is the EOM panel, 

which is a subunit of NAPA; and this is the way in which we compromise between our interests in having a diverse general membership and then subject matter panels that are expert but that themselves are fairly diverse and they can respond to these things. 

I think the work of ACUS would be enormously improved if all 

recommendations didn’t have to go through that plenary and if people who were not public members of the conference as a whole 

could sit on committees, and then you would have something that 

looked a lot more like the National Academy of Sciences. 

I would say that when you start expanding that mandate—and 

I am speaking as an advocate—when you start expanding that 

mandate, I am afraid that you draw the attention of ACUS away 

from the small. Now, ironically, it is the small that can’t get any 

attention paid to it unless ACUS pays attention to it. So what I 

would say, if you want to expand that mandate, you have to give 

ACUS some sort of incentive to make sure that it keeps tending 

after these fairly minor issues. It has to have a division that does 

that or something of the sort. 

Mr. CANNON. Thank you. I have gone over my time, and I apologize. Mr. Watt. 

Mr. WATT. I just wanted to get an appreciation of what the prior 

budget was before the termination and if we extrapolate out with 

some reasonable cost of living adjustment what that would result 

in. 

Mr. EDLES. The budget when ACUS was abolished was $1.8 million, and it had a staff of 18 employees at that time. At the high 

water mark of ACUS, I think it had a budget of $2.3 million. That 

was the highest ever, and that supported a staff of 24 employees. 

Mr. WATT. And if you were thinking about the ideal—taking into 

account the backlog of things that has not been attended to since 

ACUS has not been in existence, first of all, for how long—how 

long do you think it would take to get that backlog taken care of 

and to what extent would the budget be ramped up for that period 

of time and for what period of time? 

Mr. EDLES. I don’t think I can answer either of them, how long 

it would take or how much it would cost. 

I can tell you that when President Eisenhower set up the first 

temporary conference, he did that in 1951. That conference lasted 

for 2 years. So it was over, I guess, in 1955. By 1961, President 

Kennedy had to set up another temporary conference, which means 

that over a period of 4, 5 years there was again a need for additional work. 

The first temporary conference came up with about 30 recommendations, as I recall reading, and the second temporary conference also with something on the order of 30 recommendations. 

I don’t really have a real strong feeling as to, you know, how many 

various projects there are out there. I suspect there are scores of 

them that could be usefully done at this stage. And I think $10 million would probably be a wonderful figure. I think, quite candidly, 


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something in the neighborhood of 2 to 3 million would probably be 

more politically acceptable. 

Mr. WATT. At least for a start. At least to start. 

I am just trying to create a record here with expert input, which 

I think, even if you are guessing, if it is an educated guess, is better than having an appropriator pull a figure out of the sky, I guess 

is the point I am making. So I want—let me just encourage each 

of you to do some creative thinking about this, whether you do it 

today or whether you submit it to us to supplement the record subsequent to today’s hearing. I think you all are in a better position 

to evaluate this than either the Chairman or I would be and certainly in a better position than some appropriator pulling a figure 

out of the sky would be. So if you don’t have a good feel for it 

today, I would just hope that you would give it some thought, give 

us your input and the basis on which you make that input. 

Mr. CANNON. Without objection, I suggest we leave the rest of 

the record open for 7 days so you all could submit your thoughts 

on funding to us. 

Mr. WATT. There are some responses that they may be prepared 

to make today. 

Mr. CANNON. Without objection, so ordered, on leaving the record 

open. 

Ms. PAYTON. I am so nervous about the prospect of diluting the 

main focus of ACUS. One of the reasons why you are getting such 

a bipartisan, enthusiastic response is exactly that ACUS did something that was enormously important and irreplaceable, something 

that only ACUS could do and no one else will. 

When you start expanding the role of ACUS, you may wind up 

in terrain that other people think they already occupy; and it is almost possible that this measure that at the moment is going forward so smoothly may encounter some rocky places. 

Mr. WATT. I guess my response to that is I think it is part of our 

responsibility to forward some parameters with this, not just to say 

we reauthorize ACUS, but we reauthorize it up to a figure of x 

amount per year. Now whether the appropriators buy that figure 

or not, I think may be—if this process works as it should work, it 

will be in direct proportion to the—our having justified it and built 

a record in support of it. And I think that is much—a much better 

way, even if you come up with different figures, with different visions. As long as we understand what your assumptions are, we 

have built a record and can take that into account in our Subcommittee and full Committee’s evaluation on the authorizing side, 

which is what our responsibility is in this process. 

Mr. HARTER. When I discovered my error in the testimony, I actually gave considerable thought—although, obviously, a lot of it is 

guess. Let me just sort of give food for that. And I share the concern one wants to keep it closely cabined or corralled, focused on 

the administrative process. My definition may be broader, but 

when it gets beyond that, it will encounter opposition that will be 

adverse. 

On the other hand, I think there are a number of different parts 

of what the conference does that we need to be focused on. I think 

there are a whole series of large processes that Boyden has been 


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talking about that would need to be undertaken, especially given 

the hiatus. There are a whole series of smaller ones. 

In individual research areas, you get professors to do things on 

the cheek so long as there is not a lot of research, but research is 

expensive to get it done. And it strikes me in the latter days of the 

conference that it was having trouble coupling together enough resources to do good projects. It was getting money from other agencies. It was soliciting from the people it was going to study. It 

makes me a little nervous, and I think it diminished its 

nimbleness. 

I certainly echo the idea of having the broader committees. So, 

from my view, I would be concerned if it really were constrained 

only $2 million or $2.5 million. I don’t think it can really function 

effectively at that rate to get it done. My own view, a minimum of 

$5 million is necessary; and, frankly, I would go with the $10 million, with the urging that 5 is probably the minimum. If it is too 

scant, the quality of the studies just aren’t as thorough and as 

good; and part of its real advantage was thorough studies and a bipartisan support of the recommendation. 

Mr. WATT. Can I ask one more question, Mr. Chairman, just a 

corollary to that? For a 5 or $10 million investment, what would 

you project the savings were that resulted from just the—what was 

the major initiative? 

Mr. HARTER. Let me give a figure you can’t put a number on. I 

just completed 2 years ago a negotiated rulemaking for OSHA on 

building steel buildings. The subpart R of OSHA’s rules that had 

been on OSHA’s docket for 20 years, they had tried multiple times 

to revise the rule, each time unsuccessfully. The negotiated rule 

worked it through. Unanimous recommendation. OSHA implemented it. The fatalities in steel erection are currently about a 

third of what they were then. We are talking about probably 20 

deaths a year. What is the number? The regular rulemaking didn’t 

work for 20 years. 

Mr. WATT. There is method to my madness here, because this is 

the record building stage. Because I think it is our obligation to 

document the best we can the cost benefit of this reauthorization, 

and so I am being a little bit more meticulous than I would normally be because of that. I think we need to anticipate some of 

these issues, and if you all can submit something to us having 

thought about it in some more detail—I am not looking for you to 

be uniform. There is benefit I think in not being uniform. We are 

not asking you to get together as a group and come up with a 

group figure or a group vision or a group benefit, cost-benefit analysis, but this is the kind of information that I think would be helpful to have in the record to document not only the cost and what 

the reasonable costs should be to accomplish whatever the vision 

is that could differ from panelist to panelist but to document also 

the benefit of that cost; and that is, I think, what we don’t do nearly enough of in this body. 

I will yield back. 

Mr. CANNON. I would like to go through some notes and make 

some statements; and if you want to take notes, I will leave it open 

for you to comment on that. 


052004.ADO
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I appreciate, Mr. Gray, very much your statements. I think it extraordinarily important that we do this so that we stay ahead of 

the rest of the world. For me, that is very, very important. We have 

a world in which we can be transparent instead of opaque. We may 

be more transparent than Europe, but we want to be more transparent. I am a big fan of John Graham, and I appreciate your comments on him. This Subommittee is actually focusing on helping 

out there. 

Mr. Edles, you talked about—you made a great record. I really 

appreciate that. And you talked about the institutional memory. I 

just think that is remarkably important. We can put this back together with many people who are now and were in the prime of 

their lives that know what happened and know what we can do. 

And one of the things I hope we can do here is go from taking the 

negotiated regulation or rulemaking model to a negotiated permitting model. 

We are in a position where we have had massive forest fires, and 

we can’t deal with that in Congress. We fiddled around for 2 or 3 

years now on the Healthy Forest Initiative, and we still can’t get 

a consensus out of this body. We will never get a consensus out of 

this body. And we are not going to cut trees until we come up with 

a process that a rulemaking agency can do, and that is in part 

rulemaking but I think in larger part it is going to be a negotiated 

process for permitting—permitting the cutting of trees, permitting 

of drilling the wells and things like that so we that can come up 

with a process that actually works. 

The problem with it, of course—and, Ms. Payton, you talked 

about these things don’t work until something major goes wrong. 

And we have some major problems. In the case of forests, for instance, you have a forest fire because we didn’t tend to the forests 

because we could issue permits for cutting trees in a way that everybody agrees. There is a way to make sense. It is just that no 

agency is going to come up with a permit that doesn’t allow for litigation to stop the cutting of trees; and if it is not a healthy forest, 

we end up with massive forest fires. We lose the trees, lose the watershed, lose the endangered species. We are letting extreme conditions drive major issues that, when you get settled into a discussion with reasonable people, you come to conclusions. 

But it is not the reasonable people that bring the lawsuits. It is 

the people that have an agenda that is outside and choose their 

judge and all that because we abdicated. That is, America got rid 

of acres and acres. So negotiating the permitting I think is one of 

the incredibly important things that we are doing. 

Many things have been said today, and we appreciate your comments. Are there any comments on what I have said or——

Well, then I will yield back the time I have. Mr. Flake, do you 

have any questions? 

Mr. FLAKE. No questions. 

Mr. CANNON. Thank you for your attendance here. Your being 

here I think has created a record that is remarkable. More importantly, it will draw attention to people who need to understand how 

important this is and give us a boost in moving this legislation 

through and getting not only the reauthorization but funding from 


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the appropriators. We appreciate your presence here today and 

thank you. 

The hearing is adjourned. 

[Whereupon, at 3:55 p.m., the Subcommittee was adjourned.] 


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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

RESPONSE TO POST-HEARING QUESTIONS FROM C. BOYDEN GRAY


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RESPONSE TO POST-HEARING QUESTIONS FROM GARY J. EDLES


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RESPONSE TO POST-HEARING QUESTIONS FROM SALLYANNE PAYTON


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RESPONSE TO POST-HEARING QUESTIONS FROM PHILIP J. HARTER


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LETTER FROM MICHAEL HERZ AND DAVID RUDENSTINE


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Æ


052004.AFA
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U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001

88–543 PDF 2003

DEFENSE OF PRIVACY ACT AND PRIVACY IN

THE HANDS OF THE GOVERNMENT

JOINT HEARING BEFORE THE

SUBCOMMITTEE ON 

COMMERCIAL AND ADMINISTRATIVE LAW AND THE

SUBCOMMITTEE ON THE CONSTITUTION OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

ON

H.R. 338

JULY 22, 2003

Serial No. 45

Printed for the use of the Committee on the Judiciary

(

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


072203.AAB
938

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

MELISSA A. HART, Pennsylvania 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

JOHN R. CARTER, Texas 

TOM FEENEY, Florida 

MARSHA BLACKBURN, Tennessee 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California

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 

JEFF FLAKE, Arizona 

JOHN R. CARTER, Texas 

MARSHA BLACKBURN, Tennessee 

STEVE CHABOT, Ohio 

TOM FEENEY, Florida 

MELVIN L. WATT, North Carolina 

JERROLD NADLER, New York 

TAMMY BALDWIN, Wisconsin 

WILLIAM D. DELAHUNT, Massachusetts 

ANTHONY D. WEINER, New York

RAYMOND V. SMIETANKA, Chief Counsel 

SUSAN A. JENSEN, Counsel 

DIANE K. TAYLOR, Counsel 

JAMES DALEY, Full Committee Counsel 

STEPHANIE MOORE, Minority Counsel 


072203.AAC
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3

SUBCOMMITTEE ON THE CONSTITUTION

STEVE CHABOT, Ohio, Chairman

STEVE KING, Iowa 

WILLIAM L. JENKINS, Tennessee 

SPENCER BACHUS, Alabama 

JOHN N. HOSTETTLER, Indiana 

MELISSA A. HART, Pennsylvania 

TOM FEENEY, Florida 

J. RANDY FORBES, Virginia 

JERROLD NADLER, New York 

JOHN CONYERS, JR., Michigan 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ADAM B. SCHIFF, California

CRYSTAL M. ROBERTS, Chief Counsel 

PAUL B. TAYLOR, Counsel 

D. MICHAEL HURST, JR., Counsel 

DAVID LACHMANN, Minority Professional Staff Member 


072203.AAD
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072203.AAE
941

(V)

C O N T E N T S 

JULY 22, 2003

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 Jerrold Nadler, a Representative in Congress From the State 

of New York, and Ranking Member, Subcommittee on the Constitution ....... 4

The Honorable Steve Chabot, a Representative in Congress From the State 

of Ohio, and Chairman, Subcommittee on the Constitution ............................ 7

WITNESSES 

The Honorable Charles E. Grassley, a U.S. Senator From the State of Iowa 

Oral Testimony ..................................................................................................... 11

Prepared Statement ............................................................................................. 13

The Honorable Bob Barr, 21st Century Liberties Chair for Freedom and 

Privacy, American Conservative Union 

Oral Testimony ..................................................................................................... 14

Prepared Statement ............................................................................................. 16

Mr. James X. Dempsey, Executive Director, Center for Democracy & Technology 

Oral Testimony ..................................................................................................... 17

Prepared Statement ............................................................................................. 19

Ms. Laura W. Murphy, Director, American Civil Liberties Union, Washington 

National Office 

Oral Testimony ..................................................................................................... 24

Prepared Statement ............................................................................................. 26

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 ........................................................................ 3

Prepared Statement of the Honorable Jerrold Nadler, a Representative in 

Congress From the State of New York, and Ranking Member, Subcommittee on the Constitution ............................................................................ 6

Prepared Statement of the Honorable Steve Chabot, a Representative in 

Congress From the State of Ohio, and Chairman, Subcommittee on the 

Constitution .......................................................................................................... 9


072203.AAF
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072203.AAG
943

(1)

DEFENSE OF PRIVACY ACT AND PRIVACY IN 

THE HANDS OF THE GOVERNMENT 

TUESDAY, JULY 22, 2003

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COMMERCIAL

AND ADMINISTRATIVE LAW,

AND

SUBCOMMITTEE ON THE CONSTITUTION, COMMITTEE ON THE JUDICIARY, Washington, DC.

The Subcommittees met, pursuant to call, at 10:10 a.m., in Room 

2141, Rayburn House Office Building, Hon. Chris Cannon [Chairman of the Subcommittee on Commercial and Administrative Law] 

presiding. 

Mr. CANNON. We are waiting because we would like to introduce 

Ms. Murphy appropriately, and we are waiting for a faxed resume 

to come in. But while we’re waiting, if you wouldn’t mind, Steve, 

I thought we could swear the witnesses. So if Mr. Barr, Mr. 

Dempsey and Ms. Murphy, if you would stand and raise your right 

hand and take an oath, I would appreciate that. 

[Witnesses sworn.] 

Mr. CANNON. The record should reflect that everyone said yes. 

And we will wait just, if you don’t mind, another moment or two 

before we get started. 

[Recess.] 

Mr. CANNON. The Subcommittees will come to order. On behalf 

of the Commercial and Administrative Law Subcommittee, I want 

to express our sincere appreciation to our colleague and friend, the 

esteemed Chair of the Constitution Subcommittee, and its Members for participating today with us in this joint hearing on H.R. 

338, the ‘‘Defense of Privacy Act.’’

The fact that this is a joint hearing underscores the broad-ranging ramifications of the subject matter. 

The Government’s collection, use, dissemination and protection of 

personally identifiable information presents far-reaching regulatory 

as well as constitutional issues, especially in these days when there 

is an increasingly critical need to balance law enforcement initiatives designed to preemptively detect and deter terrorist attacks 

and other crimes, with the need to protect the privacy of innocent 

Americans from abusive and potentially destructive Government 

intrusion. H.R. 338, I believe, strikes that important balance, and 

I thank my co-chair for taking the initiative to reintroduce this bill 

in the 108th Congress. 


072203.AAH
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2

H.R. 338 imposes a modest, though meaningful, requirement that 

a Federal agency prepare a privacy impact analysis for proposed 

and final rules noticed for public comment. H.R. 338 is intended to 

ensure that individual privacy rights are safeguarded by requiring 

Federal agencies to consider the privacy implications presented by 

the collection, use, and dissemination of personally identifiable information. 

On the other hand, H.R. 338 will not overly burden the work of 

these agencies. In fact, its analysis requirement is similar to other 

analyses that agencies currently conduct, such as those required by 

the Regulatory Flexibility Act and the E-Government Act of 2002. 

And the Congressional Budget Office has concluded with respect to 

H.R. 338’s identical predecessor in the 107th Congress that implementation of this measure would not entail significant costs. 

As technological developments increasingly facilitate the collection and dissemination of personally identifiable information, the 

potential for misuse of such information grows. The General Accounting Office has warned that our Nation’s increasing ability to 

accumulate, store, retrieve, cross-reference, analyze and link vast 

numbers of electronic records brings substantial Federal information benefits as well as increasing responsibilities and concerns. 

The misuse—and I suspect some of the Members of the panel 

will think that was an understatement, and that’s what we’re actually looking to explore—the misuse of personally identifiable information by the Federal Government presents two major concerns. 

One is the potential for fraud presented by unrestricted access to 

such information by unscrupulous individuals, such as identity 

thieves. According to the Federal Trade Commission, identify theft 

has become one of the most widely reported consumer crimes in recent years. In fact, the Identity Theft Resource Center reports an 

estimated 700,000 Americans have been victims of this devastating 

form of fraud. 

The other concern relates to the privacy ramifications and to 

issues presented when the Government relies on inaccurate personally identifiable information. This concern is perhaps best illustrated by certain data-mining activities being undertaken by various Federal agencies. Data mining apparently involves a complex 

system that utilizes sophisticated data analysis tools to scan large 

databases for purposes of identifying valid patterns and relationships. For example, data mining is currently being used by the Justice Department to assess crime patterns and adjust resource allotments, and by the Veterans Administration to predict demographic 

changes for budgetary purposes. The Defense Department as well 

as the Transportation Security Administration are also exploring 

data mining’s terrorism-detection capabilities. 

Nevertheless, privacy advocates as well as the Congressional Research Service have identified certain concerns relating to the accuracy and privacy implications of data mining. The Congressional 

Research Service, for instance, noted that if a database contains inaccurate information, innocent people could be branded security 

risks on the basis of flawed data and without any meaningful way 

to challenge the Government’s determination. In addition, House 

Judiciary Committee Chairman Jim Sensenbrenner has also 

warned that the Defense Department’s Terrorism Information 


072203.AAI
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3

Awareness Data Mining Project warrants careful scrutiny because 

of its implications to civil liberties, mainly the presumption of innocence and the right to be free from intrusive Government surveillance absent particularized suspicion of criminal wrongdoing. 

At least in response to the regulatory aspects of privacy in the 

hands of the Government, H.R. 338 offers a simple noncontroversial solution that requires Federal agencies to consider the privacy 

ramifications with respect to proposed and final rules. As some of 

you may recall, bipartisan legislation similar to H.R. 338 was introduced by Mr. Chabot in the 106th Congress, and a bill virtually 

identical to H.R. 338 was introduced by Mr. Barr in the 107th Congress. In the last Congress the Commercial and Administrative 

Law Subcommittee, of which Mr. Barr was Chairman, held a hearing on this measure’s predecessor at which a broad political spectrum of witnesses testified in support of the legislation. The bill 

was ordered favorably reported by our Subcommittee as well as by 

the full Committee without amendment by voice vote. Thereafter, 

the House under suspension of rules passed the bill without 

amendment by voice vote in October of last year. Unfortunately the 

Senate did not consider the bill prior to the conclusion of the 107th 

Congress. 

It is against this substantial background that we will consider 

H.R. 338. 

[The prepared statement of Mr. Cannon follows:]

PREPARED STATEMENT OF THE HONORABLE CHRIS CANNON, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF UTAH

On behalf of the Commercial and Administrative Law Subcommittee, I want to 

express our sincere appreciation to our colleague and friend, the esteemed Chair of 

the Constitution Subcommittee and its Members for participating today with us in 

this joint hearing on H.R. 338, the ‘‘Defense of Privacy Act.’’ The very fact that this is a joint hearing underscores the broad-ranging ramifications of the subject matter. The government’s collection, use, dissemination, and protection of personally identifiable information presents far-reaching regulatory as 

well as constitutional issues. Especially in these days, there is an increasingly critical need to balance law enforcement initiatives designed to preemptively detect and 

deter terrorist attacks and other crimes with the need to protect the privacy of innocent Americans from obtrusive and potentially destructive governmental intrusions. 

H.R. 338, I believe, strikes that important balance and I thank my Co-Chair for 

taking the initiative to re-introduce this bill in the 108th Congress. H.R. 338 imposes a modest, though meaningful, requirement that a federal agency prepare a 

privacy impact analysis for proposed and final rules noticed for public comment. 

H.R. 338 is intended to ensure that individual privacy rights are safeguarded by requiring federal agencies to consider the privacy implications presented by the collection, use, and dissemination of personally identifiable information. 

On the other hand, H.R. 338 will not overly burden the work of these agencies. 

In fact, its analysis requirement is similar to other analyses that agencies currently 

conduct, such as those required by the Regulatory Flexibility Act and the E-Government Act of 2002. And, the Congressional Budget Office has concluded—with respect to H.R. 338’s identical predecessor in the 107th Congress—that implementation of this measure would not entail ‘‘significant costs.’’ As technological developments increasingly facilitate the collection and dissemination of personally identifiable information, the potential for misuse of such information grows. The General Accounting Office has warned that our nation’s ‘‘increasing 

ability to accumulate, store, retrieve, cross-reference, analyze, and link vast numbers of electronic records’’ brings ‘‘substantial federal information benefits as well 

as increasing responsibilities and concerns.’’

The misuse of personally identifiable information by the federal government presents two major concerns. One is the potential for fraud presented by unrestricted 

access to such information by unscrupulous individuals such as identity thieves. According to the Federal Trade Commission, identity theft has become one of the most 


072203.AAJ
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4

widely reported consumer crimes in recent years. In fact, the Identity Theft Resource Center reports that an estimated 700,000 Americans have been victims of 

this devastating form of fraud. 

The other concern relates to the privacy ramifications and to issues presented 

when the government relies on inaccurate personally identifiable information. This 

concern is perhaps best illustrated by certain data mining activities being undertaken by various federal agencies. Data mining apparently involves a complex system that utilizes sophisticated data analysis tools to scan large databases for the 

purpose of identifying ‘‘valid patterns and relationships.’’ For example, data mining 

is currently being used by the Justice Department to assess crime patterns and adjust resource allotments and by the Veterans Administration to predict demographic 

changes for budgetary purposes. The Defense Department as well as the Transportation Security Administration are also exploring data mining’s terrorism detection 

capabilities. 

Nevertheless, privacy advocates as well as the Congressional Research Service 

have identified certain concerns relating to the accuracy and privacy implications 

of data mining. The Congressional Research Service, for instance, noted that if a 

database contains inaccurate information, ‘‘innocent people could be branded security risks on the basis of flawed data and without any meaningful way to challenge 

the government’s determination.’’ In addition, House Judiciary Committee Chairman Jim Sensenbrenner has also warned that the Defense Department’s Terrorism 

Information Awareness data mining project ‘‘warrants careful scrutiny because of its 

implications to civil liberties, mainly the presumption of innocence and the right to 

be free from intrusive government surveillance absent particularized suspicion of 

criminal wrongdoing.’’

At least in response to the regulatory aspects of privacy in the hands of the government, H.R. 338 offers a simple, noncontroversial solution that requires federal 

agencies to consider the privacy ramifications with respect to proposed and final 

rules. As some of you may recall, bipartisan legislation similar to H.R. 338 was introduced by Mr. Chabot in the 106th Congress and a bill virtually identical to H.R. 

338 was introduced by Mr. Barr in the 107th Congress. In the last Congress, the 

Commercial and Administrative Law Subcommittee, of which Mr. Barr was Chairman, held a hearing on this measure’s predecessor at which a broad political spectrum of witnesses testified in strong support of the legislation. The bill was ordered 

favorably reported by our Subcommittee as well as by the full Committee without 

amendment by voice vote. Thereafter, the House, under suspension of the rules, 

passed the bill without amendment by voice vote in October of last year. Unfortunately, the Senate did not consider the bill prior to the conclusion of the 107th Congress. 

It is against this substantial background, that we will today consider H.R. 338.

Mr. CANNON. I now turn to my colleagues in the minority. Would 

anyone like to make an opening statement? 

Thank you, Mr. Nadler. 

The gentleman from New York is recognized for 5 minutes. 

Mr. NADLER. Thank you, Mr. Chairman. I’m pleased to join you 

and to join this joint hearing of the two Subcommittees in this bipartisan effort to protect the privacy of the American people from 

unjustified encroachment by the Government. Whether for the protection of personally identifiable information from identity theft or 

other misuse, or the protection of the individual from unwarranted 

intrusions by the peering eyes of Government, the protection of privacy is of the utmost important. There are legitimate reasons the 

Government may need to gather personal information and, consistent with the protections of the fourth amendment, intrude into 

the zone of privacy. But every such intrusion and the justification 

for gathering and use of all such information must necessarily be 

scrutinized with care. 

The legislation I have introduced with my colleague, the distinguished Chairman of the Constitution Subcommittee, the Defense 

of Privacy Act, and which was drafted with Mr. Barr, who is one 

of our witnesses today, would require precisely this form of careful 


072203.AAK
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5

scrutiny. I think that requiring such deliberation in advance will 

minimize such intrusions and require that they be justified. 

That this legislation is bipartisan and indeed has the support of 

both the Chair and Ranking Member of the Subcommittee sends an 

important message to every agency and to the American people. It 

makes clear that the right to privacy is a fundamental American 

right, and whether or not the courts have so found in any particular instance, it is one that as a matter of policy and principle 

should be protected scrupulously. 

I am pleased to welcome back to the Committee two distinguished alumni: our former colleague, Representative Bob Barr, 

with whom I initially worked on this legislation, and Jim Dempsey, 

who served our Subcommittee ably as counsel under the chairmanship of Don Edwards. Although they come from very different political perspectives, their agreement on this particular issue demonstrates that individual privacy, or to put it more precisely, individual autonomy, is a fundamental American value. 

Welcome home to you both. 

I have a number of concerns that I hope we can examine today. 

First, what are the sources of the information gathered by the Government? Are they reliable? We have been told by the Department 

of Justice that among other commercially available sources, credit 

reporting agencies and private companies such as ChoicePoint provide data to Government agencies. I find this deeply troubling. No 

one familiar with these sources can have confidence in the information they provide. Credit reporting agencies are notorious for providing and failing to correct inaccurate information. 

This Congress has grappled with the problems people have had 

getting credit on appropriate terms because of these inaccuracies. 

Our Committee recently reported legislation introduced by the 

Chairman of the full Committee dealing with the problem of fraudulent involuntary bankruptcies, which, although dismissed, remain 

on the targeted individual’s credit report even after they are dismissed. 

ChoicePoint people, you will remember, came under scrutiny following the 2000 election when it became known that its inaccurate 

lists illegally disenfranchised a large number of Florida voters, possibly altering the outcome of the Presidential election. If national 

security or law enforcement agencies are using information from 

these sources, we should be deeply concerned. 

Second, is the Government properly protecting personal identifiable—personally identifiable information? In those cases where the 

Government has a legitimate need to collect such information, it’s 

vulnerability to improper use either by another agency not entitled 

to use it or by private individuals who want to use that information 

for their own often illegal purposes would be intolerable. In some 

cases that information is required to be made public by law. Section 107 of the Bankruptcy Code, for example, places every aspect 

of a debtor’s life on the Internet, making these most vulnerable of 

Americans even more vulnerable to the unscrupulous. 

Third, does the Government have the right or a legitimate need 

for the information? High-tech dragnets such as the Total Information Awareness, now renamed the Terrorism Information Awareness program, would enable the Government to pore through the 


072203.AAL
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6

personal information of millions of Americans guilty of nothing 

more than using a credit card, buying an airplane ticket, or taking 

a book out of the library without any reason to suspect that person 

of so much as jaywalking. Whatever name they may come up for 

it, we should be deeply concerned with this initiative. Moreover to 

the extent that this information might be shared with law enforcement agencies that would otherwise require a warrant to obtain it, 

the program threatens the whole underpinning of our rights under 

the fourth amendment. 

So I welcome our witnesses and the opportunity to assess these 

important issues, and I look forward to a productive and informative discussion. I thank you, Mr. Chairman, and I yield back the 

balance of my time. 

Mr. CANNON. I thank you, Mr. Nadler. 

[The prepared statement of Mr. Nadler follows:]

PREPARED STATEMENT OF THE HONORABLE JERROLD NADLER, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF NEW YORK

Thank you, Mr. Chairman. I am pleased to join you in this bipartisan effort to 

protect the privacy of the American people from unjustified, encroachments by the 

government. Whether for the protection of personally identifiable information from 

identity theft or other misuse, or the protection of the individual from unwarranted 

intrusions by the peering eyes of government, the protection of privacy is of the utmost importance. 

There are legitimate reasons why the government would need to gather personal 

information and, consistent with the protections of the Fourth Amendment, intrude 

into the zone of privacy, but every such intrusion, and the justification for gathering, and use of, all such information, must necessarily be scrutinized with care. 

The legislation I have introduced with my colleague, the Distinguished Chairman 

of the Constitution Subcommittee, the ‘‘Defense of Privacy Act,’’ would require precisely this form of careful scrutiny. I think that requiring such deliberation in advance will minimize such intrusions and require that they be justified. 

That this legislation is bipartisan, indeed it has the support of the Chair and 

Ranking Member of our Subcommittee, sends an important message to every agency 

and to the American people. It makes clear that the right to privacy is a fundamental American right and, whether or not the courts have so found in any particular instance, it is one that as a matter of policy and principle should be protected 

scrupulously. 

I am pleased to welcome back to the Committee two distinguished alumni: our 

former colleague, Representative Bob Barr, with whom I initially worked on this legislative endeavor, and Jim Dempsey, who served our Subcommittee ably as Counsel 

under the Chairmanship of Don Edwards. Although they come from very different 

political perspectives, their agreement on this particular issue demonstrates that individual privacy—or to put it more precisely, individual autonomy—is a fundamental American value. Welcome home to you both. 

I have a number of concerns that I hope we can examine today. 

First, what are the sources of the information gathered by the government? Are 

they reliable? We have been told by the Department of Justice that, among other 

commercially available sources, credit reporting agencies and private companies 

such as ChoicePoint, are providing data to government agencies. I find this deeply 

troubling. 

No one familiar with these sources can have confidence in the information they 

provide. Credit reporting agencies are notorious for providing, and failing to correct, 

inaccurate information. This Congress has grappled with the problems people have 

had getting credit on appropriate terms because of these inaccuracies. Our Committee recently reported legislation, introduced by the Chairman of the Full Committee, dealing with the problem of fraudulent involuntary bankruptcies which, although dismissed, remain on the targeted individual’s credit report. ChoicePoint, 

people will remember, came under scrutiny following the 2000 election when it became known that its inaccurate lists illegally disenfranchised large numbers of Florida voters, possibly altering the outcome of the Presidential election. If national security or law enforcement agencies are using this information, we should be deeply 

concerned. 


072203.AAM
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7

Second, is the government properly protecting personally identifiable information? 

In those cases where the government has a legitimate need to collect such information, its vulnerability to improper use, either by another agency not entitled to use 

it, or by private individuals who want to use that information for their own, often 

illegal, purposes, is intolerable. In some cases, that information is required to be 

made public by law. Section 107 of the Bankruptcy Code, for example places every 

aspect of a debtor’s life on the Internet, making these most vulnerable of Americans 

even more vulnerable to the unscrupulous. 

Third, does the government have the right, or a legitimate need, for the information? High-tech dragnets, such as the Total Information Awareness—now renamed 

the Terrorism Information Awareness program—would enable the government to 

pour through the personal information of millions of Americans guilty of nothing 

other than using a credit card, buying an airplane ticket, or taking a book out of 

the library, without any reason to suspect that individual of so much as jaywalking. 

Whatever name they come up for it, we should be deeply concerned about this initiative. Moreover, to the extent that this information might be shared with law enforcement agencies that would otherwise require a warrant to obtain it, the program 

threatens the whole underpinning of our rights under the Fourth Amendment. 

So I welcome our witnesses, and the opportunity to assess these important issues, 

and I look forward to a productive and informative discussion. 

Thank you, Mr. Chairman. I yield back the balance of my time.

Mr. CANNON. Mr. Chabot, do you have an opening statement? 

Mr. CHABOT. I do. Thank you very much. 

Mr. CANNON. The gentleman is recognized for 5 minutes. 

Mr. CHABOT. Thank you. 

First I want to thank you, Mr. Chairman, for your leadership 

and your willingness to hold this joint hearing on the Defense of 

Privacy Act, and as has been done previously, we want to welcome 

back our colleague Mr. Barr, who served with great distinction on 

this Committee on the Judiciary Committee for four terms. And we 

sat next to each other and often had an opportunity during Committee meetings to discuss the issues that were going on, and he 

was one of the more active Members. And we really do miss you 

here, Bob, and hope that at some point that you’ll be back and join 

us again. 

I want to also thank my Ranking Member Mr. Nadler for cosponsoring this legislation. It’s fair to say that many of the judiciary 

Committees philosophically have a tendency to have us at odds on 

various issues even though we get along very well personally. But 

this is one piece of legislation——

Mr. NADLER. A few issues, Mr. Chairman. 

Mr. CHABOT. A few. But we’re pleased that this one we’re able 

to cosponsor together and believe that it’s important that we do 

protect the privacy rights of the American people. 

Today’s hearing is necessary because Federal agencies too often 

promulgate rules and dictate policy without consideration for the 

ultimate ramifications on the privacy of the American people. Privacy should not be a partisan issue. Privacy is a value that’s important to all citizens whether they be Republicans or Democrats, 

whether they are liberal or conservative. It’s really an intrinsic 

American value. The right of Americans to live free of excessive 

Government intrusion is a long-established principle in our Nation’s history. Many have interpreted personal privacy as one of the 

blessings of liberty, secured in the Preamble of our Constitution. 

Certainly the Bill of Rights established important privacy protections. 

Throughout our Nation’s history, the Supreme Court has placed 

a high value on these rights as well. In 1886, Justice Clark opined 


072203.AAN
950

8

for the Court in Boyd v. United States that the doctrines of the 

fourth and fifth amendments, quote, ‘‘apply to all invasions on the 

part of the Government and its employees of the sanctity of a 

man’s home and the privacies of life,’’ unquote. More importantly, 

in his concurring opinion, in Katz v. United States, Justice Harlan 

succinctly stated that the fourth amendment provided citizens, 

quote, ‘‘a reasonable expectation of privacy,’’ unquote. 

When I first introduced the Defense of Privacy Act back in the 

106th Congress, I did so because of an increasing concern that this 

reasonable expectation is too often an afterthought in the regulatory process. We have seen attempt after attempt by Federal 

agencies to implement ominous regulations that allow the Government to invade the privacy of American citizens. From financial information to medical records, the Federal Government has sought 

access to highly sensitive information without regard to the privacy 

implications. 

The Defense of Privacy Act provides a straightforward solution to 

this problem. The legislation would, for the first time, require Federal agencies to assess the privacy implications of their proposed 

rules or regulations. Through this process, we would shine a light 

on the potentially negative impact of Government regulations on 

personal privacy, at the same time encouraging Federal agencies to 

more fully consider the merits of each proposal and review less intrusive alternatives. 

This legislation is particularly relevant today. Significant technological advancements have prompted a flurry of Government proposals to employ new tools to effectively fight crime or combat terrorism. While some of these programs may ultimately prove useful 

and provide legitimate information to the Government, Congress 

and the Administration must also work to protect the privacy 

rights of law-abiding Americans, especially where the collection 

and dissemination of personally identifiable information is concerned. 

In recent years we have heard a steady stream of reports about 

programs or policies in both the public and private sector that raise 

privacy concerns, from reports of drastic increases in identity theft 

to Government proposals like the FDIC’s so-called ‘‘Know Your 

Customer’’ regulations, or, as some of us refer to it, the ‘‘Spy on 

Your Customer’’ regulations, and data-mining systems like the 

FBI’s Carnivore that I know Mr. Barr had spoken and acted very 

actively when he was on this Committee. So we recognize that this 

is not an easy task we have before us today, and it will not get any 

easier in the future. Yet passing this common-sense legislation is 

a good first step. Requiring all Federal agencies to assess privacy 

implications of proposed rules and regulations will elevate the issue 

of privacy protection and generate important debate, thus strengthening the rights of every American. 

I look forward to hearing the testimony from our distinguished 

witnesses here today, and I yield back the balance of my time. 

Mr. CANNON. I thank you, Mr. Chabot. 

[The prepared statement of Mr. Chabot follows:]


072203.AAO
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9

PREPARED STATEMENT OF THE HONORABLE STEVE CHABOT, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF OHIO

First, I want to thank you, Chairman Cannon, for your tremendous leadership 

and willingness to hold this joint hearing on the Defense of Privacy Act. Today’s 

hearing is necessary because federal agencies too often promulgate rules and dictate 

policy without consideration for the ultimate ramifications on the privacy of the 

American people. 

Privacy is not a partisan issue. Privacy is a value important to ALL citizens—

Republican or Democrat, liberal or conservative. It is an intrinsic American value. 

The right of Americans to live free of excessive government intrusion is a longestablished principle in our nation’s history. Many have interpreted personal privacy 

as one of the ‘‘Blessings of Liberty’’ secured in the Preamble to our Constitution. 

Certainly, the Bill of Rights established important privacy protections. 

Throughout our nation’s history, the Supreme Court has placed a high value on 

these rights as well. In 1886, Justice Clark opined for the Court in Boyd v. the 

United States that the doctrines of the Fourth and Fifth Amendments ‘‘apply to all 

invasions on the part of the government and its employees of the sanctity of a man’s 

home and the privacies of life.’’

More recently, in his concurring opinion in Katz v. United States, Justice Harlan 

succinctly stated that the Fourth Amendment provided citizens a ‘‘reasonable expectation of privacy.’’

When I first introduced the Defense of Privacy Act in the 106th Congress, I did 

so because of an increasing concern that this ‘‘reasonable expectation’’ is, too often, 

an afterthought in the regulatory process. We have seen attempt after attempt by 

federal agencies to implement ominous regulations that allow the government to invade the privacy of American citizens. From financial information to medical 

records, the federal government has sought access to highly sensitive information 

without regard to the privacy implications. 

The Defense of Privacy Act provides a straight-forward solution to this problem. 

The legislation would, for the first time, require federal agencies to assess the privacy implications of the proposed rules or regulations. Through this process, we 

would shine a light on the potentially negative impact of government regulations 

on personal privacy—at the same time, encouraging federal agencies to more fully 

consider the merits of each proposal and review less intrusive alternatives. 

This legislation is particularly relevant today. Significant technological advancements have prompted a flurry of government proposals to employ new tools to effectively fight crime and combat terrorism. While some of these programs may ultimately prove useful and provide legitimate information to the government, Congress 

and the Administration must also work to protect the privacy rights of law-abiding 

Americans—especially where the collection and dissemination of personally identifiable information is concerned. 

In recent years, we have heard a steady stream of reports about programs or policies in both the public and private sector that raise privacy concerns—from reports 

of drastic increases in identity theft to government proposals like the FDIC’s ‘‘Know 

Your Customer’’ regulations and data-mining systems like the FBI’s ‘‘Carnivore.’’ So, 

we recognize that this is not an easy task today, and it will not get any easier in 

the future. Yet, passing this common-sense legislation is a good first step. Requiring 

all federal agencies to assess privacy implications of proposed rules and regulations 

will elevate the issue and generate important debate—strengthening the rights of 

every American. 

I look forward to hearing the testimony from our distinguished witnesses today.

Mr. CANNON. We’d like to also recognize Mrs. Blackburn from 

Tennessee and Mr. Scott from Virginia. 

Without objection, all Members may place their opening statements in the record at this point. Is there objection? Hearing none, 

so ordered. 

Without objection, the Chair will be authorized to declare recesses of the Subcommittee today at any point. Hearing none, so 

ordered. 

On unanimous consent I ask that Members have 5 legislative 

days to submit written statements for inclusion in today’s hearing 

record. 


072203.AAP
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10

I’m now going to introduce our witnesses. We expect Senator 

Grassley to join us. He’s apparently in a hearing, and so we will 

come back and introduce him when he arrives. 

Joining Senator Grassley, or maybe we should say after we hope 

Senator Grassley joins the rest of us, we’ll hear from our esteemed 

colleague and probably hear first from you, unless Senator Grassley comes in soon, Bob Barr. Bob, as you know, chaired this Subcommittee, which I am honored to succeed him in this position, 

during the 107th Congress, and, in fact, he authored the H.R. 338’s 

predecessor in the last Congress. 

It’s a great pleasure to welcome you back, Bob. 

Over the course of his four terms in Congress, representing Georgia’s Seventh District, Mr. Barr served on the Financial Services 

and Government Reform Committees in addition to the Judiciary 

Committee. As one of the Nation’s leading privacy hawks, it’s particularly appropriate for him to share his thoughts on this legislation. He appears today as the 21st Century Liberties Chair for 

Freedom and Privacy at the American Conservative Union. 

Our next witness is Jim Dempsey, another Judiciary Committee 

alum, whom we also welcome back. Mr. Dempsey is currently the 

executive director of the Center on Democracy and Technology. 

That’s got to be one of the coolest jobs on the face of the Earth, 

by the way. 

Mr. DEMPSEY. Yes, sir, it is. 

Mr. CANNON. If you need some bipartisan—I’d love to do something with you guys—where he specializes in privacy and electronic 

surveillance issues. 

Before joining the center, Mr. Dempsey was the deputy director 

of the Center for National Security Studies and also served as special counsel to the National Security Archive, a nongovernmental 

organization that uses the Freedom of Information Act to gain the 

declassification of documents pertaining to U.S. foreign policy. 

From 1985 to 1994, Mr. Dempsey was assistant counsel to the 

House Judiciary Subcommittee on Civil and Constitutional Rights, 

the precursor to the Subcommittee on the Constitution, which is 

jointly holding this hearing with us today. 

Mr. Dempsey obtained his undergraduate degree from Yale College and his law degree from Harvard Law School. 

Our final witness is Laura Murphy. Laura is the director of the 

Washington office of the American Civil Liberties Union, the Nation’s oldest and largest civil liberties organization. As Washington 

office director, she directs the national legislative and executive 

branch priorities on behalf of the 250,000-member organization. 

The first woman and first African American to hold the position 

of Washington office director, Ms. Murphy had previously worked 

for the ACLU as a lobbyist for more than 3 years during which she 

was instrumental in the passage of the Voting Rights Act extension 

of 1982. 

She was a development director in the southern California ACLU 

affiliate and has worked for five elected officials in the State; State, 

municipal and Federal levels. And I have worked with her in particular, along with Mr. Barr, on the Patriot 1. Interesting, we now 

call it Patriot 1 because we have a Patriot 2 coming maybe, or at 

least there’ll be an attempt. I suspect the Patriot 2 will be a—just 


072203.AAQ
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11

some minor technical corrections and not some of the major 

changes that some want. 

But it was a pleasure working with you, and I welcome you here 

today, Ms. Murphy. 

Ms. MURPHY. Thank you. 

Mr. CANNON. I extend to each witness my warm regards and appreciation for your willingness to be at today’s hearing. In light of 

the fact that your written statements will be included in the hearing record, I request that each of 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, and I think you all have had experience, there is 

a little device that has a green and then a yellow and a red light. 

The yellow means you have 1 minute remaining. To be consistent 

I will tap when the red light goes on. That doesn’t mean stop. It 

means wrap up, if you will. During questioning I try to be very 

careful to remind people when time is up on an even-handed basis. 

Again, if you’re answering the question, a tap just means that if 

you’d finish your answer, we would appreciate it. 

Senator Grassley, welcome. Would you like to join us at the 

table, Senator? We would all love to have the obscurity which you 

enjoy, which is national fame and recognition. I have not introduced you, so, Mr. Grassley, if you would allow me. 

I’m honored to introduce today particularly our senior Senator 

from Iowa, Senator Chuck Grassley. In addition to having the distinction of being the only working family farmer in the United 

States Senate, Senator Grassley currently chairs the Senate Finance Committee and plays an active role on the Senate Judiciary 

Committee. 

We understand that he has just returned from a Senate judicial 

confirmation hearing. We hope that was successful. So we’re especially appreciative that he was able to adjust his busy schedule in 

order to participate in today’s hearing. 

And with that, Senator, if you would like to go ahead and speak, 

we would appreciate hearing from you. 

STATEMENT OF THE HONORABLE CHARLES E. GRASSLEY,

A UNITED STATES SENATOR FROM THE STATE OF IOWA 

Senator GRASSLEY. Thank you very much, Mr. Chairman. Congressman King, my fellow Congressman from Iowa. First of all, I 

appreciate very much the introduction. If my son Robin heard that, 

he’d say, Dad, why don’t you tell them I do all the work? So Robin 

Grassley does most of the work on the family farm. 

Mr. Chairman and Members of the Subcommittee, I thank you 

for this opportunity to testify on a very important topic of privacy. 

In this post-September 11 world, the Government must do everything within its power and within the law to protect our citizens 

and country, but more and more, this stepped-up protection involves intrusion of private lives. Some of them are just plain inconveniences, but some of them approach violation of fundamental 

rights. 

Justice Brandeis noted in 1928, quote, the right to be left alone 

is the right that Americans cherish most, or at least more than 

most of any right, is what he said. It’s my belief that one of the 


072203.AAR
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12

most important jobs we as legislators and overseers of the executive process do is vigorously guard and protect the right to be left 

alone. I’d like to focus my remarks on this important oversight aspect of our job and specifically on the Terrorist Information Awareness program, or TIA, that the Defense Department is presently researching. 

Power can be abused if put in the wrong hands. That’s why 

checks on power are critical for privacy. A prosecutor can go too far 

in pressing a case, harassing and embarrassing a private person. 

So judges and defense counsel are a critical check on prosecutorial 

power. Likewise, an overzealous investigator can dig too deeply 

into private lives. So the courts, under authority of the Constitution, are there to restrain undue probing. Even intelligence officials’ powers are checked by the Foreign Intelligence Surveillance 

Act and the secret court that enforces that act. Without these 

checks, even a good-meaning public official can overreach and exploit our deeply cherished privacy. 

But in some instances, there aren’t systemic checks in place. A 

public official working deep within the bowels of a Government 

agency may be able to burrow into private information of people 

with little or no oversight. So H.R. 338 appears to focus on some 

of these situations where new administrative rules could create opportunities for unwarranted intrusion into privacy. The bill’s impact statement requirement would force careful consideration of appropriate safeguards to protect civil liberties. It is important that 

this process doesn’t become too cumbersome, create new bureaucracies or cause unnecessary delays. We need a careful, but nimble 

Government to fight terrorism. I look forward to listening to the 

debate on the bill in the coming weeks. 

It is in these situations where there’s no obvious safeguard that 

the Congress must provide rigorous oversight of the executive 

branch and do that to protect the public, and also the public’s cherished right to privacy, and do that against unwarranted Government intrusions. I describe one such incident where I’ve been involved in heavy oversight to protect civil liberties. 

Many of you may know about the Defense Department’s TIA program that’s designed to test technologies that collect information 

from private and public databases and try in turn to find trends 

that could signal threats against our country. This program’s being 

run under DARPA, the DOD’s unit that created the Internet. Like 

many people, I have been concerned that TIA would be used to invade the privacy of Americans by snooping around our bank accounts, personal Internet computers, phone records, and a lot of 

other things you can think of. In November of last year, I asked 

the Department of Defense inspector general to look into the reasons for TIA and to make sure that there are controls in place to 

ensure that it’s used only for foreign intelligence purposes and for 

that purpose, to protect us against terrorism and foreign threats. 

The inspector general’s investigation is proceeding, and a formal 

audit of TIA should be finished by the fall. 

In January of this year, Democratic Senator Ron Wyden and I 

were able to get an amendment attached to the Department of Defense appropriation bill that limited funding for TIA research and 

required congressional reporting and oversight. In a recent report 


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the Department of Defense seems to have embraced its role in restricting the intrusion TIA will have into people’s lives and has 

confirmed that it will not, and has confirmed that it cannot, meddle 

into private information that it’s not otherwise allowed access to 

under existing law. 

After 9/11, all of us in Congress were questioning why Government failed to connect the dots and recognize terrorist activities 

that were interrelated. Well, it’s my understanding that TIA is 

being researched as a tool that could potentially help connect some 

dots. But we have to be careful about on the one hand demanding 

that the Administration connect the dots and, on the other hand, 

putting a stop to their efforts to connect the dots. I have learned 

that the Department of Defense appropriation bill that’s currently 

being debated would cut off all research funding. We need to proceed with caution. But one thing’s for certain: Oversight is critical. 

It is a delicate balance that Congress must strike between protecting people from terrorism and protecting people from unwarranted Government intrusion into their private lives, and in the 

mix must be rigorous and effective congressional oversight. You can 

expect that I will continue to carry the oversight torch, and I hope 

that each of you will as well. 

I thank you for your time and focusing on a very important subject, Mr. Chairman. 

Mr. CANNON. Thank you, Mr. Grassley. 

[The prepared statement of Senator Grassley follows:]

PREPARED STATEMENT OF THE HONORABLE CHUCK GRASSLEY,

A U.S. SENATOR FROM THE STATE OF IOWA

Chairman Cannon, Chairman Chabot, Members of the Subcommittees, thank you 

for the opportunity to testify on the important topic of privacy. In this post-September 11 world, the government must do everything within its powers, and within 

the law, to protect our citizens and country. But more and more this stepped-up protection involves intrusions into our private lives. Some of them are just inconveniences; but some of them approach violations of fundamental rights. The ‘‘right to 

be let alone,’’ as Justice Brandeis noted in 1928, is the right that Americans cherish 

more than most any right. 

It is my belief that one of the most important jobs we as legislators and overseers 

of the executive process do is vigorously guard and protect the right to be let alone. 

I’d like to focus my remarks on this important oversight aspect of our job and, specifically, on the Terrorist Information Awareness program—T-I-A—that the Defense 

Department is researching. 

Power can be abused if put in the wrong hands. That’s why checks on power are 

critical for our privacy. A prosecutor can go too far in pressing a case, harassing 

and embarrassing a private person. So judges and defense counsel are a critical 

check on prosecutorial power. Likewise, an overzealous investigator can dig too deep 

into private lives. So the courts—under the authority of the Constitution—are there 

to restrain undue probing. Even intelligence officials’ powers are checked by the Foreign Intelligence Surveillance Act and the secret court that enforces that act. Without these checks, even a good-meaning public official can overreach, and exploit our 

deeply cherished privacy. 

But in some instances, there aren’t systemic checks in place. A public official 

working deep within the bowels of a government agency may be able to burrow into 

the private information of people with little or no oversight. H.R. 338 appears to 

focus on some of those situations where new administrative rules could create opportunities for unwarranted intrusions into privacy. The bill’s impact statement requirement would force careful consideration of appropriate safeguards to protect 

civil liberties. It is important that this process doesn’t become too cumbersome, create new bureaucracies, or cause unnecessary delays. We need a careful but nimble 

government to fight terrorism. I look forward to listening to the debate on this bill 

today and in the coming weeks. 


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It’s in these situations, where there’s no obvious safeguard, that the Congress 

must provide rigorous oversight of the Executive Branch to protect the public—and 

the public’s cherished privacy rights—against unwarranted government intrusions. 

Let me describe one such instance where I’ve been involved in heavy oversight to 

protect civil liberties. 

Many of you may know about the Defense Department’s TIA program that’s designed to test technologies that collect information from public and private databases and try to find trends that could signal threats against the United States. 

This program’s being run under DARPA, the DOD unit that created the internet. 

Like many people, I’ve been concerned that TIA could be used to invade the privacy 

of Americans by snooping around in our bank accounts, personal internet computers, phone records, and the like. In November of last year, I asked the DOD Inspector General to look into the reasons for TIA and to make sure that there are 

controls in place to ensure that it’s used only for foreign intelligence purposes to 

protect us against terrorism and foreign threats. The IG investigation is proceeding, 

and a formal audit of TIA should be finished by the Fall. 

In January of this year, Senator Ron Wyden and I were able to get an amendment 

attached to the DOD appropriations bill that limited funding for TIA research, and 

required Congressional reporting and oversight. In a recent report, DOD seems to 

have embraced its role in restricting the intrusion TIA will have into people’s lives, 

and has confirmed that it will not, and cannot, meddle into private information that 

it’s not otherwise allowed access to under the law. 

After 9/11, all of us in the Congress were questioning why the government failed to ‘‘connect the dots’’ and recognize terrorist activities that were interrelated. Well, 

it’s my understanding that TIA is being researched as a tool that could potentially 

help connect some dots. We have to be careful about on the one hand demanding 

that the administration connect the dots—and on the other hand putting a stop to 

their efforts to connect the dots. I have learned that the DOD appropriations bill 

that’s currently being debated would cut off all research funding—we need to proceed with caution here. But one thing’s for certain, oversight is critical. It’s a delicate balance that Congress must strike between protecting people from 

terrorism, and protecting people from unwarranted government intrusions into their 

private lives. In the mix must be rigorous and effective congressional oversight. You 

can expect that I will continue to carry the oversight torch, and I hope that each 

of you will too. 

I thank you for your time, and for focusing on this important topic.

Mr. CANNON. We recognize your schedule is busy. If you need to 

leave, you certainly don’t need to ask. But have you got a little bit 

of time to do questions with us? 

Senator GRASSLEY. I’ll try, yes. 

Mr. CANNON. Okay. No compulsion here, but we really appreciate 

your insights into that situation. 

Senator GRASSLEY. I really need to go back to Judiciary. 

Mr. CANNON. Would you please get something done over there? 

I’m not sure how you’re going to do that, but you have our support, 

maybe even our prayers. 

Mr. GRASSLEY. If we had your Rules Committee, we could do a 

lot. 

Mr. CANNON. Thank you, Senator Grassley. 

Mr. Barr. 

STATEMENT OF THE HONORABLE BOB BARR, 21ST CENTURY 

LIBERTIES CHAIR FOR FREEDOM AND PRIVACY, AMERICAN 

CONSERVATIVE UNION 

Mr. BARR. Thank you very much, Mr. Chairman and Mr. Chairman Chabot. It’s a tremendous honor to be here today with you 

and distinguished Ranking Member and good friend Mr. Nadler, 

whom—with whom I’ve had the pleasure in months since I left the 

Congress to share some podiums to discuss these very issues. It is 

a tremendous honor to be before you and Mr. Scott, with whom I 

worked very closely. It was an honor. I look up to him as a mentor, 


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coming as he does from Harvard and being very well versed in so 

much of what went on in the Judiciary Committee, and I enjoyed 

working with him very closely on many of the pieces of legislation. 

Colonel, so wonderful to see you today. Mr. Coble, my good friend 

and colleague; and Mr. Flake, from the great State of Arizona. 

It’s wonderful to be with you all today and to think as we proceed with this hearing of the many issues on which we worked together constructively, Democrat, Republican, those from a more liberal persuasion and a more conservative one. And that really is, as 

Mr. Chabot indicated, Mr. Cannon indicated, Mr. Nadler indicated 

in their opening remarks, is really the hallmark of this legislation. 

It is an honor to be back before the Subcommittee, and I will 

submit my written remarks for inclusion, as the Chairman indicated, in their entirety in the record, and appreciate that courtesy 

being extended. 

Let me speak to just a couple of points and then listen to Mr. 

Dempsey, for whom I have the highest regard on these matters of 

privacy and Government power, and I have had the pleasure of 

working with him on many occasions, and after him, to Ms. Murphy, who has really been a stalwart not only here in Washington, 

D.C., but across the country in working on these tremendously important privacy and other civil liberties matters. And it is an honor 

to appear today with them, as it was with my good friend from my 

native State of Iowa, Senator Grassley. 

Mr. Chairman, while the world of George Orwell’s 1984 face 

crime and thought crime and the world of Minority Report’s 

precrime detention and arrest are not fully upon us, their specter 

is so close that it casts a shadow over our Nation, and we need to 

do everything within our power to ensure that the mechanisms 

that we read about in those novels and in those movies do not become the reality of TIA gone wild or CAPS II gone astray, or any 

of the other myriad programs such as Project Carnivore that I 

think Mr. Chabot indicated we worked on years ago do not obtain 

the hold on our society that some, perhaps in the minority, but 

some in our society would like them to do. If we allow that to happen, then indeed we will look back on these days of vast Government power as the good old days when there was at least some 

freedom and some privacy left, and I know none of us here in this 

room today want to see that happen. 

This piece of legislation, carefully crafted as I know it is, very 

well thought out as it obviously is, is a very, very modest piece of 

legislation. Some might ask on the outside why bother with such 

a modest piece of legislation, foregoing as it does a direct attack, 

so to speak, on some of the mechanisms that we’re all familiar 

with? I think it’s important to make this small, but significant step, 

as Chairman Chabot described it, as a good first step because we 

do want to tread carefully. 

None of us have a desire to thwart the Government’s legitimate 

and paramount interest in fighting the war against terrorism and 

other criminal activity. We certainly want to make sure that what 

we do to ensure that privacy is protected, and in those instances 

where it has been threatened or curtailed, it is made whole again, 

we certainly want to make sure that those do not come at the expense of legitimate law enforcement, legitimate antiterrorism efVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 00957 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230

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forts or legitimate foreign intelligence-gathering, analysis, coordination and dissemination efforts. 

And that is why I think this first step is a very, very appropriate 

one. It will send a very important message not just to the American 

people, but to the courts and to the executive branch that we in the 

Congress, that you in the Congress, care deeply about privacy, and 

that you are taking steps, concrete steps, through this legislation 

to begin the process of ensuring that privacy is fully recognized and 

protected as one of the foundational principles underlying our Bill 

of Rights. 

The legislation does in many respects, if not precisely, mirror legislation that Mr. Chabot, as was indicated, introduced in the 106th 

Congress and as I introduced with the support of many on these 

two panels in the 107th Congress. I stand ready to assist in any 

way possible with this legislation not just today, but in the months 

ahead and would be glad to answer any questions or engage in any 

colloquies or discussions today as we look at specific aspects of the 

legislation. Thank you, Mr. Chairman. 

Mr. CANNON. Thank you, Mr. Barr. 

[The prepared statement of Mr. Barr follows:]

PREPARED STATEMENT OF THE HONORABLE BOB BARR

I am pleased to offer my views today on behalf of the American Conservative 

Union at this joint hearing of the Subcommittee on Commercial and Administrative 

Law and Subcommittee on the Constitution to examine the Defense of Privacy Act, 

H.R. 338, introduced by Representative Chabot, the distinguished Chairman of the 

Subcommittee on the Constitution, and Representative Nadler, its ranking member. 

This legislation also enjoys the support of my good friend Representative Cannon, 

the distinguished Chairman of the Subcommittee on Commercial and Administrative Law, who I am very pleased to see has so ably taken up the gavel that I was 

once honored to hold. 

I am particularly pleased that you have taken up this issue, Chairman Cannon, 

as bipartisan work on this issue—and on this important legislation—were, as you 

know, among the issues most dear to my heart when I sat where you are sitting 

now. I now appear before you to represent the American Conservative Union, the 

nation’s oldest conservative lobbying organization, which expresses its strong endorsement of this legislation. I hope we can, together, speedily send this good government initiative on its way through the House and ultimately to the President’s desk. 

It is clear that those of us who support this legislation, both in and out of Congress, do not agree on every issue. In fact, however, many observers have been particularly impressed by the political diversity of the bill’s supporters, and I am 

pleased to be part of a distinguished panel which also spans the conventional ideological spectrum. 

Supporters of this legislation share a commitment to protecting the privacy cherished by American citizens—a value increasingly imperiled in an information age 

in which personal information has become a commodity that is captured and compiled, manipulated and misused, bought and sold in ways not even imaginable just 

a few years ago. The sphere of privacy, which Justice Brandeis eloquently described 

as the ‘‘right to be let alone,’’ is not only rapidly diminishing, it is increasingly penetrable. Special care is necessary to ensure that personal information remains personal, absent a sound reason to treat it otherwise. This value is neither Republican 

or Democratic; liberal or conservative, it is truly an American value; one that remains a the heart of our way of life and of our Bill of Rights. 

H.R. 338 takes the first—necessary—step toward protecting the privacy of information collected by the federal government. While some have decried the loss of personal privacy by private companies, (and this is indeed a matter of grave concern), 

it must be emphasized that government alone has the authority to compel the disclosure of personal information; and unlike a private commercial gatherer of personal 

data, the government can put you in jail based on what it uncovers. For this reason, 

the government has an obligation to exercise great responsibility when enacting policies that undermine privacy rights. 


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The Defense of Privacy Act requires that rules noticed for public comment by federal agencies be accompanied by an assessment of the rule’s impact on personal privacy interests, including the extent to which the proposed rule provides notice of 

the collection of personally identifiable information, what information will be obtained, and how it is to be collected, maintained, used and disclosed. The measure 

further provides that final rules be accompanied by a final privacy impact analysis, 

which indicates how the issuing agency considered and responded to privacy concerns raised by the public, and explains whether the agency could have taken an 

approach less burdensome to personal privacy. 

Unlike existing laws that protect against the disclosure of information already obtained by the federal government, the Federal Agency Protection of Privacy Act provides prospective notice of a proposed rule’s affect on privacy before it becomes a 

binding regulation. Together with a wide and diverse array of co-sponsors, I introduced an earlier version of this measure last Congress—H.R. 4561, the Federal 

Agency Protection of Privacy Act, which passed the full House by a voice vote under 

suspension of the rules. Unfortunately, the Senate did not take up the measure with 

the rush of business at the end of a busy 107th Congress, but I am confident that 

with such broad support we will get the job completed this year. 

Like that earlier measure, H.R. 338 specifically articulates the principles that 

should guide agency action when rules that impact privacy are promulgated: 1) the 

public should have notice that a rule provides for the collection of personally identifiable information and how the agency will collect, maintain, use and disclose that 

information; 2) individuals should have access to information that pertains to them 

and an opportunity to correct inaccuracies; 3) agencies should take steps to prevent 

information collected for one purpose from being used for another purpose; and 4) 

agencies should take steps to provide security for such information. 

Importantly, H.R. 338 permits individuals who are adversely affected by an agency’s failure to follow its provisions to seek judicial review pursuant to the provisions 

of the Administrative Procedure Act. In this respect, the bill tracks the administrative innovations of 1996 amendments to the Regulatory Flexibility Act, which provided for the judicial review of rules issued without regard to their impact on small 

businesses. I can say, without hesitation, that privacy is no less important to American citizens than regulatory burdens are to American businesses, and this measure 

helps address these concerns. 

Finally, I want to emphasize that H.R. 338 will not unduly burden regulators nor

will it hinder law enforcement or foreign intelligence gathering. The Defense of Privacy Act will apply the best antiseptic—sunshine—to the federal rulemaking process 

by securing the public’s right to know about how rules will affect their personal privacy while ensuring that citizens have the opportunity not only to critique the substance of a rule, but to do so with an understanding of the reasoning and justification upon which the rule was predicated. 

On behalf of the American Conservative Union, I thank the Committee for this 

opportunity to express our strong support for this important legislation.

Mr. CANNON. Mr. Dempsey, you are recognized for 5 minutes. 

STATEMENT OF JAMES X. DEMPSEY, EXECUTIVE DIRECTOR, 

CENTER FOR DEMOCRACY & TECHNOLOGY 

Mr. DEMPSEY. Thank you, Mr. Chairman and Chairman Chabot 

and Mr. Nadler, Members of the two Committees. It is a privilege 

to be here today, especially to share the witness table with Senator 

Grassley and Mr. Barr and Ms. Murphy, three of the leading advocates and supporters of privacy in this country. 

The Center for Democracy and Technology is here today in 

strong support of H.R. 338. The legislation has in it a concept; the 

core of it is the privacy impact assessment, and this is clearly a 

concept whose time has come. Even though this legislation was not 

enacted in the 106th Congress or last year, the principle is being 

implemented already in Government agencies, is being adopted by 

the Congress. In the E-Government Act, which was adopted last 

year, that legislation included a requirement for privacy impact assessments when the Government was procuring new computer systems. And when Congress also last year adopted the Homeland SeVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 00959 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230

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curity Act, it took the privacy impact assessment concept and it included it in the Homeland Security Act and gave that responsibility 

to the privacy officer in that agency. 

So H.R. 338 would fully deploy, so to speak, this concept across 

the Government. We’ve seen the idea being picked up already, and 

it’s now time to apply it across the board to Federal agency rulemaking. 

Now, the concern might be raised that this would be an encumbrance to the Federal bureaucracy, or that it would impose unnecessary costs. I want to stress a point that Chairman Cannon made 

in his opening statement, which was that last year the Congressional Budget Office studied this legislation and in its estimate 

concluded that it would not impose any significant cost or require 

any significant expenditure, and pointed out that only a small percentage of the Federal regulations would actually require a full privacy impact assessment. 

And I would like to stress that I think that in many ways, this 

legislation can end up saving money and actually streamlining the 

realization of Government programs and the achievement of legitimate Government interests, and that’s because the legislation 

forces agencies to focus on the privacy concerns at the point when 

it can make the most difference; that is, at the design phase, at the 

initial phase when the Government is deciding to initiate through 

regulation a new collection of information. That’s the time to surface problems and to correct them. It could end up saving money 

and avoiding litigation. 

I know just one example. Last year a Government contractor lost 

or suffered a security breach. Five hundred thousand records of 

military personal and retired Active Duty and retired military personal and their families were stolen by computer because of poor 

computer security practices from computer systems run by a contractor. The Government and the contractor are now having to 

spend hundreds of thousands, if not millions, of dollars notifying 

those people and trying to rectify that damage. And if the security 

issues associated with that information had been surfaced at the 

outset, that could have been avoided. 

The legislation creates a public input mechanism so that groups 

like the American Conservative Union and the ACLU and CDT can 

comment on rulemaking and put suggestions; making suggestions, 

for example, to use an identifier other than the Social Security 

number, which we know has gotten out of hand, and is the key to 

identity theft, and maybe a system could be designed to avoid that 

so we can build privacy into the design of data collection. 

Now, I would just point out that there is one issue which Senator 

Grassley alluded to, the Chairman in his opening statement alluded to, that I think is actually not covered by this legislation, 

which desperately needs being addressed, and that is the increasing use by the Government of commercial databases where the 

Government buys the information or subscribes to it from the private sector, doesn’t mandate the disclosure by rulemaking, doesn’t 

take the information into its own database, so it never really becomes subject to the Privacy Act. The FBI has reported that its use 

of these commercial databases has grown by 9,600 percent since 

1992. Congress needs to figure out what’s going on there. They 


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need to require the agencies to disclose how they are using this 

data and to walk through many of the questions that are in this 

legislation. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Dempsey follows:]

PREPARED STATEMENT OF JAMES X. DEMPSEY

Chairman Cannon, Chairman Chabot, Members of these two Subcommittees, 

thank you for the opportunity to testify today on H.R. 338, the Defense of Privacy 

Act. We commend you for your attention to the important privacy issues surrounding the government’s collection and use of personal information. We offer here 

today our strong support for the Defense of Privacy Act. In addition, we suggest 

some further steps Congress should take to ensure fairness in the government’s collection or use of personal information, particularly with regard to government access 

to commercial databases and the possible use of ‘‘data mining’’ techniques. We look 

forward to ongoing work with you on these issues. 

I. SUMMARY

The federal government has many legitimate needs for personal information, 

ranging from administration of benefits programs to tax collection to winning the 

war on terrorism. Especially in light of the digital revolution, this government demand for information brings with it heightened risk to privacy and the associated 

values of Fair Information Practices. The Defense of Privacy Act would put in place 

an important process to protect Americans’ privacy against unnecessary or unwise 

government intrusions. The Act requires government agencies to closely examine 

the privacy impact of their rules and regulations and to consider alternative ways 

to accomplish their objectives while minimizing any adverse privacy impact. The Act 

focuses on the point when careful consideration of privacy could do the most good: 

at the beginning of the regulatory process. 

The Defense of Privacy Act serves as a sound complement to Section 208 of the 

E-Government Act of 2002, which requires that federal agencies conduct privacy impact assessments whenever they purchase a new information technology or initiate 

a new collection of personally identifiable information. However, we note with dismay that the Office of Management and Budget (OMB) has failed to issue guidance 

to agencies on performing the privacy impact assessments under the E-Gov Act. We 

urge the Subcommittees to send a strong message to OMB that it should promptly 

issue guidance to the agencies on the E-Gov Act privacy impact assessment process. 

While adoption of the Defense of Privacy Act and full implementation of the EGov Act would be important steps, further congressional action is needed to address 

a new problem: the growing use by federal law enforcement and intelligence agencies of sensitive, personal data about Americans held by the private sector or collected by government agencies for purposes other than law enforcement or intelligence. With growing frequency, the government does not compel disclosure of private sector data but rather purchases access to it. Since this information is not collected under a regulation, it would not be subject to the Defense of Privacy Act. 

Agencies are developing new ‘‘data mining’’ technologies that would seek evidence 

of possible terrorist preparations by scanning billions of everyday transactions, potentially including a vast array of information about Americans’ personal lives, such 

as medical information, travel records, credit card and financial data, and government data initially collected for non-law enforcement purposes. Contrary to some reports, research on data mining continues under the auspices of the Total (now Terrorism) Information Awareness (TIA) project at the Pentagon’s Defense Advanced 

Research Projects Agency. And even if TIA funding were zeroed out, the development of data mining would go on commercially or at other agencies. Government 

implementations of this uniquely intrusive technology should not go forward without 

explicit congressional authorization based on (i) a finding of effectiveness, (ii) guidance for implementation, and (iii) oversight. CDT urges the Congress to develop, 

first, a structure or criteria for evaluating the effectiveness of particular uses of data 

analytics technology and then, for specific situations where the use of such techniques are found to be effective, guidelines and an oversight process for protecting 

privacy and due process. CDT offers its assistance in that process. 


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II. THE DEFENSE OF PRIVACY ACT AND PRIVACY IMPACT ASSESSMENTS

A. The Defense of Privacy Act 

CDT strongly supports enactment of H.R. 338, the Defense of Privacy Act, introduced this Congress by Chairman Chabot and cosponsored by Representatives Boucher and Nadler. The bill would require agencies to conduct privacy impact analyses 

for both new and existing agency rules and regulations. Importantly, it would provide a judicial review mechanism to ensure enforcement. For the same reasons that 

we supported former Representative Barr’s Federal Agency Protection of Privacy 

Act, which passed the House of Representatives in the last Congress but was never 

taken up by the Senate, we believe that H.R. 338 provides a sound approach for 

enhancing privacy protections for the federal government’s collection and use of personally identifiable information. 

The privacy impact analyses required by the Defense of Privacy Act will greatly 

improve the regulatory process. They will force agencies to consider issues they have 

often overlooked in issuing regulations, namely the privacy implications. Agencies 

would have to consider ways to reduce the privacy impact of regulations. And they 

would have to systematically justify their decisions to collect personally identifiable 

information. 

Specifically, the bill requires agencies to address up front some of the basic ‘‘Fair 

Information Practices’’ that are reflected in the federal Privacy Act of 1974, such as 

notice to individuals of the collection of personally identifiable information, the right 

of individuals to access information about themselves, the opportunity to correct information, limits on use and disclosure of data for purposes other than those for 

which the data was collected in the first place, and appropriate security measures 

to protect the information against abuse or unauthorized disclosure. 

These ‘‘Fair Information Practices’’ form part of the foundation of the Privacy Act, 

which was enacted in response to the creation of government computer databanks 

filled with personally identifiable information. (As will be discussed below, the Privacy Act has a number of exemptions and loopholes that render it less effective 

today than intended.) Other Fair Information Practices, which are also reflected in 

the Privacy Act, include limitations on the retention of data, a requirement to ensure the accuracy, completeness and timeliness of information, and the establishment of redress mechanisms for individuals wrongly and adversely affected by the 

use of personally identifiable information. We recommend that those additional 

principles be included in the Defense of Privacy Act’s list of considerations that 

agencies must review when issuing regulations, so that the Defense of Privacy Act 

fully tracks the Privacy Act of 1974. 

A key element of the Defense of Privacy Act is that it would require policy makers 

to identify and address privacy issues at the initial stages of a new project or policy—at the conceptual or design stage, before regulations are promulgated. This represents a vast improvement over current practice. It also means that the Act should 

not adversely interfere with agency operations. Instead, it will reduce the likelihood 

that any given regulatory scheme will be found to have a negative impact on privacy 

after it has been implemented, when it may be difficult to mitigate the impact without substantial expense, delay in the program or even litigation. The requirement 

that agencies periodically review existing regulations that have serious privacy implications could also benefit agency operations by identifying information collection 

practices that have become outdated or unnecessary and that can be dispensed with 

altogether. 

The privacy impact analyses will not force agencies to adopt any one privacy 

standard. Indeed, different standards may well be appropriate for different programs dealing with information of varying sensitivity. However, having to work 

through a privacy impact analysis should guide an agency in acting more responsibly, and as a result this bill should lead to better regulations and fewer unnecessary privacy intrusions. 

B. Failure to Fully Implement the E-Government Act 

Enactment of H.R. 338 would not be the first time that Congress has directed federal agencies to analyze the privacy impact of their programs. Just last year, the 

E-Government Act of 2002 included a provision, Section 208, requiring federal government agencies to conduct privacy impact assessments before developing or procuring information technology or initiating any new collections of personally identifiable information. Under that legislation, a privacy impact assessment must address 

what information is to be collected, why it is being collected, the intended uses of 

the information, with whom the information will be shared, what notice would be 

provided to individuals, and how the information will be secured. The privacy impact assessments required under the Defense of Privacy Act complement the reVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 00962 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230

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quirements under the E-Gov Act. We urge the Subcommittees to ensure that the 

two Acts are congruent. Our initial thoughts are that this should be done by making 

the list of factors to be considered the same in both, and by making it clear that 

when a new collection of information is initiated by rule, the notice and comment 

provisions of the Defense of Privacy Act apply to the privacy impact assessment 

process. The privacy impact assessments under the E-Gov Act should bring greater transparency to the IT development and procurement process, allowing Congress, citizens 

and advocacy groups to better scrutinize the privacy decisions of the government. 

And using the massive purchasing power of the U.S. government, the assessments 

could help to increase the marketplace for technologies that incorporate privacy ‘‘by 

design.’’ Unfortunately, privacy impact assessments for information technology procurements have only been implemented by a few agencies, despite the fact that the EGovernment Act set an April 2003 deadline for implementation. The Director of 

OMB was supposed to issue guidelines in April for agencies on how to draft the assessments, but has failed to do so. As a result, the implementation of this important 

new privacy protection has been significantly pushed back. CDT is very concerned 

about this delay. These Subcommittees should encourage the Executive Branch to 

get on with implementation of the E-Gov Act. Guidance issued for privacy impact 

assessments under the E-Gov Act could also help agencies perform similar assessments of regulatory actions under the Defense of Privacy Act. 

It is worth noting that privacy impact assessment requirements like those in the 

Defense of Privacy Act and the E-Government Act are not a new or uniquely American concept. Privacy impact assessments already are used in several other countries. Indeed, privacy commissioners in Canada and New Zealand have issued excellent guides or handbooks on conducting privacy impact assessments, which may assist OMB in issuing its guidance. For more information about the international experience, see Privacy and E-Government: Privacy Impact Assessments and Privacy 

Commissioners—Two Mechanisms for Protecting Privacy to Promote Citizen Trust 

Online, a report of the Global Internet Policy Initiative, which can be found at 

http://www.gipiproject.org/practices/030501pia.pdf. 

C. Privacy Officers 

We briefly mention one other important privacy protection mechanism, the Privacy Officer, now being implemented at the Department of Homeland Security. In 

Section 222 of the Homeland Security Act of 2002, Congress established a Privacy 

Officer for the Department. The Privacy Officer’s statutory responsibilities include ‘‘evaluating legislative and regulatory proposals involving collection, use, and disclosure of personal information by the Federal Government’’ and ‘‘conducting a privacy 

impact assessment of proposed rules of the Department . . . including the type of 

personal information collected and the number of people affected.’’ CDT believes 

that every federal agency should have a statutory Privacy Officer with authorities 

similar to those provided under the Homeland Security Act. This officer would have 

the stature and expertise to effectively conduct privacy impact assessments of the 

kind required under the Defense of Privacy Act, and the Defense of Privacy Act 

would give these officers specific requirements and an enforcement mechanism to 

draw on in fulfilling their duties. Attempts by the Clinton Administration to create 

privacy officers by Executive memorandum were unsuccessful. The position needs 

and deserves statutory footing. 

III. THE NEED FOR FURTHER CONGRESSIONAL ACTION REGARDING THE PRIVACY IMPLI- CATIONS OF DATA MINING AND OTHER GOVERNMENT USES OF COMMERCIAL INFORMA- TION

The E-Government Act’s requirement that agencies issue privacy impact assessments each time they procure new information technology systems was a vital step 

toward making privacy a significant part of government decision-making processes. 

The Defense of Privacy Act addresses another major concern by requiring agencies 

to consider the privacy implications of their proposed and existing regulations. But 

there is a third set of issues not necessarily addressed by either of those provisions: 

‘‘data mining’’ and other law enforcement and intelligence uses of commercial data 

and other information that was not initially collected for law enforcement and intelligence purposes. Law enforcement and intelligence agencies are increasingly buying 

commercial data or developing new uses of government data originally collected for 

non-law enforcement or intelligence purposes. A new theory of pattern-based analysis is being developed that claims the ability to review the ocean of data we generate in everyday life, potentially including a vast array of information about Americans’ personal lives such as medical information, travel records and credit card and 


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financial data. Such techniques turn the presumption of innocence upside down. 

They seem to assume government access to personal information about everyone 

from any source. Yet this is an area where few laws, regulations or guidelines constrain the government or provide any meaningful oversight or accountability. CDT 

urges Congress to address this significant gap in privacy protection. 

Before going into further detail, let me be clear on one point: The threat terrorism 

poses to our nation is imminent and grave. Our nation critically needs a more effective intelligence effort to thwart terrorism, and this effort must include new technologies for collecting and analyzing information from public and private sources. 

But advanced information technology, by its power to search decentralized databases, has new, grave privacy implications. Such technology must be used only if 

effective; it must be subject to checks and balances; it must be implemented with 

a focus on actual suspects, guided by the particularized suspicion principle of the 

Fourth Amendment; and it must be subject to executive, legislative and judicial controls. At this time, those checks and balances do not exist. 

A. Access to Information Initially Collected for Purposes Other Than Law Enforcement and Intelligence 

Increasingly, U.S. law enforcement and intelligence agencies are seeking access to 

commercial data and other personally identifiable information that was not initially 

collected for law enforcement and intelligence purposes. Agencies can obtain this information via subscription, through voluntarily disclosures, or under new Patriot 

Act authorities that authorize access under very weak standards. The Constitution 

as currently interpreted provides no limits on government collection of this information because courts in the pre-Internet era—not envisioning a technology that could 

link vast public and private databases to present a composite image of any individual—held that individuals do not have Fourth Amendment rights in personal information disclosed to third parties like banks and credit card companies in the 

course of business transactions. 

The result is that the government faces few constraints on its ability to obtain 

and use this information. For years the FBI has had contracts with major companies that aggregate commercial data about individuals. According to an undated FBI 

presentation obtained by the Electronic Privacy Information Center, the FBI’s use of ‘‘public source’’ information (including those proprietary commercial databases) 

has grown 9,600% since 1992. Other entities that collect commercial information 

have voluntarily provided the FBI with their databases, from grocery store frequentshopper records to scuba diving certification records. But it is entirely unclear what, 

if any, guidelines apply to the FBI’s use of this information. 

Ironically, when private companies wish to use and share consumer information 

to assess an individual’s credit, decide whether to extend a job offer, or evaluate 

whether to issue an insurance policy, they must comply with fairly strict rules. For 

example, under the Fair Credit Reporting Act, private companies cannot use consumer information to deny an individual a job, credit or insurance unless that person has the opportunity to review and correct that information. 

Yet the government is subject to none of those rules when it uses that same information to identify possible terrorists, even though the consequences of mistake or 

abuse can be very serious. The Privacy Act was supposed to subject government 

agencies that collect personally identifiable information to the Fair Information 

Practices, but the Act’s protections only apply to federal ‘‘systems of records,’’ so the 

government can bypass the Privacy Act simply by accessing existing private sector 

databases rather than collecting the information itself. Thus, although the Privacy 

Act requires notice to and consent from individuals when the government collects 

and shares information about them, gives citizens the right to see whatever information the government has about them, and holds government databases to certain 

accuracy standards, none of those rules applies when the government accesses commercial information without pulling that data into a government database. Currently, the government need not ensure (or even evaluate) the accuracy of the data; 

it need not provide individuals with the ability to review and correct the data; and 

there are no limits on how the government might interpret or characterize the data. 

Meanwhile, plans are being discussed to promote broader sharing of data with state 

and local authorities, and the line between domestic intelligence and foreign intelligence has blurred. 

CDT recognizes that commercial information can and should play a key role in 

law enforcement investigations. But agencies relying on that data should have clear 

guidelines for its use—guidelines that both protect individual rights and ensure the 

information is useful for investigative purposes. 

The accuracy of the information, for example, is essential both to the effectiveness 

of counter-terrorism efforts and to individuals to ensure they are not mistakenly 


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caught up in an investigation. Marketing data and other information collected for 

commercial purposes are often inaccurate. Rampant identity theft threatens to pollute credit reports and other commercial databases with false information. Accordingly, a way needs to be found to build data quality standards into government uses 

of consumer data. Another problem is security. It is important to protect against 

abuse by rogue agents within law enforcement agencies. There have been recurrent 

news accounts of police officers using access to police computers to obtain information about celebrities or to track their ex-girlfriends; agencies should establish auditing mechanisms and other safeguards to protect against that type of unauthorized 

access when agencies query commercial databases. Redress is a third issue: what 

will be the rights of an individual if adverse action is incorrectly taken on the basis 

of erroneous or misinterpreted commercial data? 

B. Data Mining Technology 

A related but even more complicated set of issues concerns so-called ‘‘data mining’’ or ‘‘pattern analysis’’ technology. This set of techniques purports to be able to find 

evidence of possible terrorist preparations by scanning billions of everyday transactions, potentially including a vast array of information about Americans’ personal 

lives. This type of ‘‘pattern-based’’ analysis is to be distinguished from more traditional ‘‘suspect-based’’ searches, where a law enforcement agency has identified a 

suspect and is attempting to locate additional information about the suspect (or his 

associate) through the use of commercial databases. Pattern-based searches heighten civil liberties concerns because they require government access to everyone’s information, not just that of individuals already under suspicious as a result of traditional investigative means. For that reason, our concerns about the use of private 

sector information (and government data originally collected for non-law enforcement or intelligence purposes) grow exponentially when the government seeks to 

use that information as part of a data mining program. 

Congress has put a temporary hold on domestic deployment of data mining technology originating from the Pentagon’s ‘‘Total Information Awareness’’ (recently renamed ‘‘Terrorism Information Awareness’’) program, and it appears likely that the 

hold will continue through FY2004. This is a positive step, but data mining of Americans’ bank, credit, medical, commercial and other records can continue unhampered 

at the FBI, CIA, the Terrorist Threat Integration Center (TTIC), and the various 

components of the Department of Homeland Security. Yet there is a host of unanswered questions regarding this technology that should be answered before it goes 

forward. 

These questions fall into two categories. First, is the technique likely to be effective? If not, there is no reason to pursue it, particularly when we have limited resources for counter-terrorism. No government agency has yet demonstrated that this 

type of technology will work, and there are serious questions about whether it will 

generate so much information—including false positives—that it will be impossible 

to investigate all of the leads. Our intelligence agencies are already overloaded with 

information they do not have the resources to analyze; adding to that load will serve 

no purpose. Second, if data mining is shown to be effective, what should be the rules governing it? Who should approve the patterns that are the basis for scans of private 

databases and under what standard? What should be the rules limiting disclosure 

to the government of the identity of those whose data fits a pattern? When the government draws conclusions based on pattern analysis, how should those conclusions 

be interpreted? How should they be disseminated and when can they be acted upon? 

Adapting the Privacy Act and other Fair Information Practices to government 

uses of commercial databases is one way to look at setting guidelines for data mining. But some of those principles seem inapplicable to the intelligence context, while 

others need to be further augmented. Perhaps one of the most important elements 

of guidelines for data mining would be rules on the interpretation and dissemination 

of hits and on how information generated by computerized scans can be used. Can 

it be used to conduct a more intensive search of someone seeking to board an airplane, to keep a person off an airplane, to deny a person access to a government 

building, to deny a person a job? What due process rights should be afforded when 

adverse actions are taken against individuals based on some pattern identified by 

a computer program? Can ongoing audits and evaluation mechanisms assess the effectiveness of particular applications of the technology and prevent abuse? 

All of these questions must be answered before moving forward with implementation. Meanwhile, Congress should insist on a full reporting from all agencies as to 

their uses of commercial databases. The privacy impact assessment concept in the 

Defense of Privacy Act may be an excellent framework for this kind of reporting. 

Then Congress should limit the implementation of data mining until effectiveness 


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has been shown and guidelines on collection, use, disclosure and retention have 

been adopted following appropriate consultation and comment. It is time for Congress to create this framework, working with the intelligence agencies, privacy experts, and the industries that hold this data and build the technology to analyze 

it. 

IV. CONCLUSION

CDT commends the Subcommittees for holding this important hearing. Enactment 

of the Defense of Privacy Act is an important step toward ensuring that federal 

agencies consider and address the privacy implications of their programs. Further 

steps must be taken, however, to ensure that our law enforcement and intelligence 

agencies operate under a set of privacy-protective polices and guidelines when they 

access commercial information and seek to ‘‘mine’’ it in search of terrorists. Such 

guidelines would not merely to protect individual rights; they would focus government activity and make it more effective.

Mr. CANNON. I didn’t mean stop. I was really interested in what 

you were saying, Mr. Dempsey, but we’ll give you a chance to continue in a moment. 

Mr. DEMPSEY. Yes, sir. 

Mr. CANNON. I just thought I’d point out here that many of the 

things you talked about that we’ve done historically were actually 

done under the leadership of Mr. Barr when he had this chairmanship, and I hope that I can fulfill the shoes or the mantle that he’s 

left behind. 

We’d also like to recognize the presence of—let’s see, Mrs. 

Blackburn from Tennessee, Mr. King from Iowa, and Mr. Coble 

from North Carolina, and Mr. Flake from Arizona. 

And with that, Ms. Murphy, we’d like to yield you 5 minutes. 

STATEMENT OF LAURA W. MURPHY, DIRECTOR, AMERICAN 

CIVIL LIBERTIES UNION, WASHINGTON NATIONAL OFFICE 

Ms. MURPHY. Thank you, Chairman Cannon, Chairman Chabot, 

and Ranking Member Nadler and the Members of the Subcommittee. I’m pleased to testify in favor of the Defense of Privacy 

Act on behalf of the ACLU, and I’m also pleased to substitute for 

my dear colleague Gregory T. Nojeim, who could not be here because of a family emergency. 

Ours is a nationwide nonprofit organization with over 400,000 

members, not 250—I have to update my bio—dedicated to protecting the principles of freedom set forth in the Constitution and 

in our Nation’s civil rights laws. We join many Members of the 

Subcommittee on both sides of the aisle in nongovernmental organizations from across the political spectrum in support of this legislation. 

Americans right to privacy is in peril. Individuals’ personal information, including medical and financial records, is being collected 

on computer networks that can be linked, transferred, shared and 

sold, often without consent or knowledge of the person to whom the 

information pertains, and as Jim says, this information is increasingly being used by the Federal Government. Increasingly, this information is obtained by the Government, and because of this, legislation such as H.R. 338, the ‘‘Defense of Privacy Act,’’ is essential 

to force the Government to even consider protecting the privacy of 

and limiting access to the information that it collects. 

The legislation that you are considering today is simple, yet very 

powerful; modest, yet effective. It would require Federal agencies 


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to issue privacy impact statements with the regulations they propose. It would encourage agencies to develop a systematic means 

for reviewing how a particular regulation would affect individual 

privacy. 

One need only to look at the application of this law, of this bill, 

had it been law when the Government introduced the Total Information Awareness program and the Computer-Assisted Passenger 

Profiling System. We could have used this law in the current debate that’s taking place over this last session of Congress. The 

TSA, the agency that is advocating CAPS, wants to collect data on 

every individual who flies on an airplane in the U.S. To determine 

who is rooted in the community so that unusual behavior of less 

rooted individuals would help to single out terrorists. The Department of Defense wants to collect information on everyone in our 

country so that it can be compiled in a central database. Using algorithms they would single out aberrant behavior to help determine terrorism activities. These agencies, if they issued regulations 

on these programs, would be forced to consider what data it would 

gather on individuals and whether it could collect less data and 

achieve the same security outcome that it could get by collecting 

less data. 

This legislation introduces long-accepted principles of fair information practices into the rulemaking process. It is modeled after 

the Regulatory Flexibility Act, and it places an important check on 

agencies’ use and disclosure of personal information. 

People care about privacy, and that’s why so many people in the 

last year alone have joined the ACLU. Under this bill, they would 

have a better opportunity to be heard when their privacy is threatened. 

I agree with Mr. Barr: This bill is modest because what it does 

not do is as important as what it does do. The bill does not create 

new substantive legal standards for the use and disclosure of individually identifiable personal information, information maintained 

by Government agencies. The Privacy Act and other Federal statutes already do that. 

The bill does not give the individual power to force an agency to 

adopt a particular privacy policy alternative, including those that 

would be lease intrusive of privacy. It merely requires agencies to 

consider less intrusive alternatives and to explain why they selected that alternative over the others. 

The bill is not overly burdensome, and it would not hinder efficient functioning of Federal agencies. 

The legislation applies only to rulemaking. It does not cover 

other, more numerous administrative actions that fall outside the 

formal rulemaking process. These are things like adjudications and 

informal agency actions. In particular, law enforcement agencies 

would continue to be able to investigate crimes and track down 

criminals just as they do under current law. The bill includes necessary exceptions that already appear in current law. 

And I think I’ll conclude here. But I just would like to say that 

we would like to work very closely with both sides of the aisle to 

get this legislation into law, and I think it is very important that 

we had Chairman Grassley to testify over here because we don’t 

have as many conservative privacy advocates on the Senate side as 


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we do on the House side. And I thank all the Members of this 

panel for holding a hearing today and pushing this most important 

legislation. 

Mr. CANNON. Thank you, Ms. Murphy. 

[The prepared statement of Ms. Murphy follows:]

PREPARED STATEMENT OF LAURA W. MURPHY

Chairmen Chabot and Cannon, and Ranking Members Watt and Nadler: 

I am pleased to testify today on behalf of the American Civil Liberties Union in 

favor of the Defense of Privacy Act, H.R. 338. The ACLU is a nationwide, non-partisan organization of nearly 400,000 members dedicated to protecting the principles 

of liberty, freedom, and equality set forth in the Bill of Rights to the United States 

Constitution and in our nation’s civil rights laws. For almost 80 years, the ACLU 

has sought to preserve and strengthen privacy in many aspects of American life. 

Americans’ right to privacy is in peril. Individuals’ personal information, including 

medical and financial records, is being collected through an ever expanding number 

of computer networks and being stored in formats that allow the data to be linked, 

transferred, shared and sold, often without consent or knowledge. 

The same technological advances that have brought this country enormous benefit 

also make people more vulnerable to unwanted snooping and accidental disclosure 

of personal information. The federal government’s increased reliance on computerized records increases efficiency but also poses significant challenges to privacy. 

H.R. 338, the ‘‘Defense of Privacy Act,’’ would require federal agencies to issue privacy impact statements with the rules or regulations they propose. By requiring privacy impact statements, the bill would encourage agencies to develop a systematic 

means for reviewing how a particular regulation would affect individual privacy. In 

addition, such statements would put the public on notice about the choices federal 

agencies are making about the use and disclosure of individually identifiable information and give the public a carefully limited chance to participate in those decisions. 

The Defense of Privacy Act would provide an important check and balance on federal agencies’ use and disclosure of personal information inside and outside the government. The passage of this legislation would be an important step in the effort 

to protect privacy, particularly as the federal government relies more and more on 

powerful information technology. 

THE HISTORY AND LESSONS OF THE ‘‘KNOW YOUR CUSTOMER’’ BANKING REGULATION

The history of the ‘‘Know Your Customer’’ (‘‘KYC’’) regulations provides important 

background on the need for privacy issues to be considered before a regulation is 

adopted. 

In 1998, pursuant to the Bank Secrecy Act and other federal law, each of the bank 

regulatory agencies published parallel ‘‘Know Your Customer’’ regulations to facilitate the filing of suspicious activity reports, an element of the agency’s broader antimoney laundering initiative. Although most banking institutions already had adopted KYC programs voluntarily, the proposed regulation established uniform standards across the banking industry. Banks were required to identify customers and 

their normal and expected transactions, to determine the customer’s sources of 

funds for transactions involving the bank, and to monitor daily transactions and 

identify those that appear suspicious. The impact of the regulation, however, would 

have been to require banks to track innocent individuals in their day to day financial transactions and collect and track an enormous amount of personal financial information through federal databases 

In 1999, the Treasury Department was overwhelmed by almost 300,000 comments 

on the proposed ‘‘Know Your Customer’’ regulations because the agency failed to 

consider the privacy implications of tracking customers’ routine banking activities 

and reporting personal financial information to the government before proposing the 

rule. As a result, the agency was forced to retreat and withdraw the proposed rule. 

The KYC experience provides two clear lessons. First, Americans care about the 

privacy of personal information. Out of the almost 300,000 comments submitted on 

the proposed KYC regulations, only a small fraction were in favor the regulation. 

Second, federal agencies must consider privacy up front. As demonstrated by the 

proposed KYC regulations, because bank regulators failed to consider privacy, the 

proposed regulation unraveled, forcing regulators back to the drawing board and 

wasting federal resources. 


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REQUIREMENTS OF THE DEFENSE OF PRIVACY ACT

Although federal laws regulate the use and disclosure of personal information 

within the government, privacy continues to be an afterthought in the development 

of federal policy. In addition, the public has little opportunity to comment on—or even understand—the choices administrators are making about the use and disclosure of individually identifiable information. 

The Defense of Privacy Act would establish basic checks and balances on federal 

agencies’ decisions to use and disclose personal information. The legislation’s ‘‘privacy impact statement’’ builds the principles of Fair Information Practices into the 

rulemaking process and would enhance individuals’ control over personal information stored in government databases. 

The bill would require agencies to engage in a systematic review of privacy before 

federal regulations are adopted and irreversible privacy violations occur. In addition, 

it would enhance federal agencies’ public accountability for decisions about the use 

and disclosure of personal information. 

This legislation is modeled after the Regulatory Flexibility Act (‘‘RFA’’). 5 U.S.C. 

§ 601 seq. For over twenty years, it has required agencies to consider the needs and 

concerns of small business whenever they engage in rulemaking subject to the notice and comment requirements of the Administrative Procedure Act (‘‘APA’’) or 

other federal law. This bill adopts requirements almost identical to those found in 

the RFA. Instead of assessing the impact on small business, however, the agency 

analyses would assess the impact of a regulation on individual privacy. 

WHAT THE BILL WOULD DO: 

Require a systematic review of privacy issues before a regulation is adopted. 

Sections 2(a) and (b) would require federal agencies to issue initial and final privacy impact analyses whenever the agency is required under the APA or other federal law to publish a general notice of proposed rulemaking, including interpretative 

rules involving tax laws. 

The ‘‘initial privacy impact analysis’’ would be published with the agency’s pro- posed rulemaking and the public would have an opportunity to comment on the privacy impact statement and the underlying regulation. The contents of the impact 

analysis would include an assessment of the extent to which the proposed rule will 

impact individual privacy interests including: 1) what personally identifiable information is to be collected, and how it is to be collected, maintained and used; 2) 

whether and how individuals can access the personal information that pertains to 

them; 3) how the agency prevents the information collected for one purpose from 

being used for another purpose; and 4) what security safeguards are in place to prevent unauthorized disclosure of personal information. Most importantly, the agency 

must describe alternatives to the proposed rule which accomplish the policy objective but minimize impact on individual privacy. A ‘‘final privacy impact analysis’’ would be issued with the final rule or regulation. 

This final privacy impact statement would include the same categories of information as the initial impact statement. In addition, the agency would have to explain 

the steps it has taken to minimize the ‘‘significant’’ privacy impact on individuals, 

including the factual, policy and legal reasons for selecting the alternative adopted 

in the final rule and why the other alternatives were rejected. The final privacy impact statement would also summarize the significant issues raised in the public 

comments. 

Enhance public participation and agency accountability for individual privacy interests. 

Section 2(d) would require the federal agency proposing a rulemaking that would 

have a ‘‘significant privacy impact on individuals, or a privacy impact on a substantial number of individuals’’ to ensure individuals have been given an opportunity to 

participate. Agencies could do this by taking steps such as announcing the 

rulemaking’s potential privacy impact in publications with a national circulation, 

holding public hearings and conferences, and directly notifying interested individuals. 

Section 2(f) would provide individuals who are ‘‘adversely affected or aggrieved’’ by final agency action to obtain judicial review of compliance with the procedures 

for final privacy impact statements. 

Section 2(e) would require a periodic review of rules that have a ‘‘significant privacy impact on individuals, or a privacy impact on a substantial number of individuals’’ to determine whether a rule can be amended or rescinded to minimize an adverse privacy impact. Such review is required to take place within ten years of the 

date of enactment of the regulation. Agencies are also required to publish plans for 


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these reviews in the Federal Register and invite public comment on whether the 

rule should be rescinded or amended. 

WHAT THE BILL WOULD NOT DO: 

The Defense of Privacy Act would take important steps to protect privacy. Equally 

important, however, the legislation would not undermine government rulemaking 

process or inhibit important government policy goals. 

First, the bill does not create new substantive legal standards for the use and disclosure of individually identifiable personal information within the federal government. The Privacy Act and other federal statutes continue to regulate the use and 

disclosure of personal information held by federal agencies. Sections 2(a) and (b) of 

the bill simply offer criteria that would be used to measure the privacy impact of 

any particular regulation. 

Second, the bill does not give an individual the power to force an agency to adopt 

a particular policy alternative. The final privacy impact analysis requires agencies 

to articulate the available policy options and state why one alternative was selected 

over the others. But, the bill does not require the agency to adopt the alternative 

that is least intrusive on privacy. 

Third, the bill is not overly burdensome and would not hinder the efficiency or 

functioning of federal agencies. The legislation only applies to rulemaking, not to 

the vast amount of administrative action that falls outside the formal rulemaking 

process, including adjudication, informal action, and guidance. Law enforcement 

agencies would continue to be able to investigate crimes and track down criminals 

just as they do under current law. In addition, a privacy impact analysis would only 

be required if a rulemaking is required in the first place. The APA includes exceptions that exempt certain agency functions from the rulemaking process altogether, 

including when rulemaking procedures are ‘‘impracticable, unnecessary, or contrary 

to the public interest.’’ In addition, privacy impact statements could actually increase efficiency by cutting down on privacy debacles like the proposed KYC regulation. Lots of government resources were wasted on that proposed rule because there 

was little to no consideration of privacy in the development of the proposed regulations. 

Fourth, the bill would not result in an overwhelming amount of litigation. Judicial 

review is limited to review of agency compliance with the procedures related to the 

final privacy impact statement. It does not provide individuals a right to sue over 

substantive decisions the agency makes in the final regulation. In 1996, the Small 

Business Regulatory Enforcement Fairness Act established the same judicial review 

provisions in the RFA as are included in this legislation. Pub.L. 104–121. 

Finally, the legislation includes the same waivers available under the RFA. Privacy impact statements would not be required when emergencies make compliance 

‘‘impracticable.’’

CONCLUSION

The ACLU strongly commends Chairman Chabot (R-OH) for introducing this important bill. We urge other Members to join them in support of a good government 

measure that would enhance individuals’ privacy.

Mr. CANNON. I think that we have probably helped the ACLU 

here with the PATRIOT Act. I think that was probably the cause 

of the spike of——

Ms. MURPHY. It’s sad, though, that things like that have to help 

the membership of the ACLU. 

Mr. CANNON. It is, I suppose. But let me just say that it’s really 

nice to know there are 400,000 people out there that care enough 

to sign up and pay their dues. So we appreciate that. 

I’ll yield to myself 5 minutes, and then we’ll—oh. I think we 

want to acknowledge the presence of our Ranking Member on the 

Commercial and Administrative Law Subcommittee Mr. Watt. 

Mr. WATT. Good morning. 

Mr. CANNON. May I just ask, Ms. Murphy, you know, you talked 

about CAPS. My understanding of CAPS is that it’s really a private 

database that the Government is adopting. Is that true? 


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Ms. MURPHY. Well, it is a database, but I don’t know how you 

can call it private when the Government adopts it. 

Mr. CANNON. Right. But it comes from—it was created by the—

by one or more of the airlines and used, as I understand, in a 

primitive form to identify many of the terrorists on 9/11 and has 

now become more central to the Government activity. 

Ms. MURPHY. Right. Well, the genesis of CAPS has come from 

the airline industry—the fact that the Government is now going to 

be responsible for administering this program, in my view, makes 

it something completely within the purview of the Government, 

and the troublesome part of CAPS is that they did not issue regulations in advance of the program. So this bill would not necessarily 

capture CAPS-related regulations, and we need to look at ways to 

find—to force and compel the agencies to issue regulations and 

come to Congress before they institute such invasive programs. 

Mr. CANNON. Thank you. 

One of the things I’m concerned about is there are a lot of private databases out there. There are databases, huge databases, 

that are being manipulated by private companies. Much of their information comes from public records, but it seems to me that this 

is a critical interface between what is private and what people can 

do with private databases, which I think is quite scary also, and 

the governmental interface. 

Let me ask you a question that I would like each of you to respond to. You know, I was concerned, and when I watched and I 

forced all my kids and all my staff to watch Enemy of the State, 

because that’s an interesting movie, what you have there—a couple 

of things that are really intriguing as it relates here. One of them, 

obviously the movie is about an innocent citizen who is the victim 

of a bent bureaucrat with lots of power. And that’s scary to everyone. But just as scary is the fact that you have a—well, I get—it’s 

actually a nice thing. You have a Congressman who’s represented 

as being a man of principle. Since he couldn’t be bought or bribed 

or black-mailed, he was killed. I suppose—that may be a more rare 

circumstance than reality. The nice thing is that you actually had 

someone who was portrayed as being honest and having integrity. 

The unfortunate thing is that you have to get rid of him. 

But I worry there aren’t a lot of us that would be in that circumstance. But there are a lot of us who are mortal and who can 

be pushed around by data. And so there are two sorts of things. 

I’m really trying to grapple with what this transition in our society 

where we have so much computing power, so much ability to manipulate, so much ability to sort in comparison to the available 

data that it seems to me that we have a couple of problems, and 

I’d like your insight on those problems, what other problems we 

have to go along with that. 

In the first place, you have the problem of public officials who 

are subject to extortion because of facts that can be observed 

through these databases, and, therefore, you get a distorted decision-making process. And then the second concern that I have is, 

you know, if someone wants an outcome from Congress, like the 

person did in Enemy of the State, he can get it by extortion. But 

on the other hand, I worry about the lower agent who has a potential son-in-law that he doesn’t like and he wants to dissuade him 


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from marrying his daughter, and therefore goes in the database 

and finds information. 

It seems to me that when you get into that position, you’re not 

much different from some of the States in the world where they use 

thuggery or bribery or some other form of persuasion other than 

law to regulate society, and it occurs to me that those two things 

seem to be critical issues that we ought to be dealing with, that 

they go well beyond this issue. But I’m wondering, as you’ve looked 

at the big questions, are those the big questions, or are there other 

things out there that we need to be concerned about? 

We can start with Mr. Barr. 

Mr. BARR. You’ve raised some very important and fundamentally 

critical issues, Mr. Chairman, as you always do. And I think those 

are certainly concerns. A generation ago or so when I was in college, back in the 1960’s, we had some scandals back then with regard to the Government, certain Government agencies collecting 

evidence and compiling dossiers on certain citizens in the civil 

rights movement and the student movement and the antiwar movement, and that was bad enough. Think what the problem would 

have been had they had today’s technology in those times. 

You are right. The availability of the technology, the extent to 

which technology can be used to collect, analyze, sort, disseminate 

vast amounts of data, undreamed of just a few years ago, really 

puts us in an entirely different arena than we were a generation 

ago, and that influences why we are here today, and it influences 

what Government can do. The Department of Defense coming forward and saying, you know, hey, it’s okay, guys, we’re only going 

to limit the collection of information that goes into TIA to that information which Government can accumulate lawfully, doesn’t 

make me feel any better whatsoever. 

The problem here is, and the question here is, do we want Government to be doing this in the first place regardless of where it 

gets the data. Whether it gets it from a private database as a way 

to avoid the strictures of the Privacy Act or FOIA, for example, or 

whether it gets it from somewhere else, the fundamental question 

is do we want Government gathering data, analyzing it and compiling electronic dossiers on law-abiding citizens with no reasonable 

suspicion that they have done anything wrong? That is why this 

debate is so very, very important and why the answer to your question is yes, those are very, very real concerns today, and if we don’t 

address them today, we’ll not have an opportunity to in a few 

years. It will be a fait accompli. 

Mr. DEMPSEY. Mr. Chairman, I think you have put your finger 

on it exactly in terms of asking what is the next set of issues that 

we need to worry about. I think H.R. 338 should be enacted, address the regulatory process and the collection in the regulatory 

process. Get that done and in place, but at the same time, begin 

to move on to the kinds of questions that you’re now raising. And 

one of those is this blurring of the line between commercial databases and Government databases and the increasing reliance of the 

Government on the commercial data. 

The Government—the day of the centralized database of the Big 

Brother Government computer is beyond us. 


072203.ABK
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Technology has moved in a different direction. The technology 

has become decentralized. The technology has become privatized. 

And now the Government no longer has to collect the information 

into a central database. The Government can reach out to these 

commercial databases. And currently, those are beyond the reach 

of the Privacy Act. They would be beyond the reach of H.R. 338 as 

it currently exists. 

I think the first step is to find out what commercial databases 

is the Government purchasing or using or subscribing to, what is 

the accuracy of that data? How is it being used? If you are in the 

database and you are in there wrongly, how can you A, find out, 

B, correct it? What is that being used for? If it’s brought into the 

criminal justice system, you get the full panoply of constitutional 

rights in a trial, but if it’s used in an employment context or some 

kind of screening context or voting or if it’s used in any of these 

noncriminal justice contexts, it’s not clear to me what the limitations are. 

As Mr. Barr correctly pointed out, the privacy laws just are not 

attuned to this current environment, and this is where I urge this 

Committee—these Committees to direct their attention. Let’s get 

H.R. 338 out of the way. Hopefully, we can find a Senate cosponsor 

and move it forward. It’s earlier in the Congress this year. Let’s get 

this enacted, but begin to use this as the way to think about the 

kinds of issues you’re raising. 

Mr. CANNON. Thank you, Mr. Dempsey. I am well over my time. 

Mr. Nadler, would you like to—the Chair yields 5 minutes to Mr. 

Nadler, the gentleman from New York. 

Mr. NADLER. Thank you, Mr. Chairman. 

Mr. Dempsey, could you elaborate a little bit on the issue of the 

misuse of information once it’s obtained, for example, inappropriate 

sharing and identity theft, and how we might deal with that? 

Mr. DEMPSEY. Well, as we all know, identity theft is one of the 

fastest growing—probably the fastest growing crime in the United 

States. If you are the victim of it, it can ruin your life as you try 

to recover from it, not only the initial monetary loss, but then in 

the process of trying to clean up your records. 

It is also interesting to think that the process of identity theft 

is continually polluting these databases and introducing false data 

into them. The State of California alone has a terrible problem 

through its Department of Motor Vehicles issuing driver’s licenses 

which have biometrics in them. They have the ID. I think they 

have a fingerprint on them, and they’re issuing them to the wrong 

people. So you are walking around with a Government-issued ID 

that’s not reflecting your real background and your real identity. 

And then you begin creating a whole new database of information, 

again, perhaps under somebody else’s name. 

Part of the basis for this is the Social Security number. The Social Security number clearly was designed to administer the Social 

Security system to collect and account for the payments. It was 

originally supposed to be used only for that purpose. Our society, 

our Government has violated one of the fundamental privacy principles, which is that the information collected for one purpose or a 

record collected for one purpose should not be used for another purVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 00973 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230

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pose. We now see that number everywhere, and it has become the 

key to identity theft. 

I think, perhaps, we can get that cat actually back in the bag as 

we develop new information systems and new information collection and begin using identifiers other than the Social Security 

number and sticking to the principle that you should have different 

identifiers for different systems if feasible. But identity theft is at 

the core. I think both of the questions of security and of some of 

the other issues, that H.R. 338 would force Government agencies 

to pay more attention to. 

Mr. NADLER. Thank you. 

Ms. Murphy, Senator Grassley commented on the case for effective checks in the executive branch, especially in this area. The bill 

before us provides for judicial review. Do you have any concerns 

about the Administration’s position on judicial oversight of national 

security agencies? 

Ms. MURPHY. Yes. We have substantial concerns, because I think 

one of the problems with the PATRIOT Act is it wrote out significant judicial review in areas that have to do with personal privacy. 

So when it comes to business records, academic records, library 

records, the standard for judicial review is not strong enough so 

that the Government is forced to justify a need nor that information. And when you look at section 215 of the PATRIOT Act——

Mr. NADLER. You are saying it is not strong enough to make the 

Government justify——

Ms. MURPHY. That’s right. And when you look at section 215 of 

the PATRIOT Act in particular, the Government only needs to assert to a court that the information its seeking is relevant to a terrorism investigation. So increasingly, through antiterrorism laws 

that are morphing into crime fighting laws, as we have seen with 

the use of the PATRIOT Act and whether it is sneak and peek warrants in other areas of the laws, increasingly the ability of the Government to seize information without our knowledge is—the need 

for that power is being claimed by the Government in order to fight 

terrorism when, in fact, we know that what happens to these laws 

and other laws that allow the Government to get our data, mission 

creep occurs and what’s sought for one purpose, is used for another 

purpose. And that’s a constant problem in the context of privacy. 

Mr. NADLER. And this, of course, leads right into the question 

that Mr. Dempsey talked about information being collected for one 

purpose and being used for another purpose. Can you comment Mr. 

Dempsey or perhaps Mr. Barr, either one, on how the PATRIOT 

Act leads to or should we put more restrictions on it with respect 

to the use and the promotion of information being collected for one 

purpose and being used for another? 

Mr. DEMPSEY. Well, the PATRIOT Act appropriately addressed 

the question of the sharing of information between the law enforcement and the intelligence communities and eliminated some of the 

legal barriers to the sharing of that information from the law enforcement side to the intelligence side. There never were any legal 

barriers preventing intelligence agencies from sharing their information with law enforcement. The fact they didn’t do that well had 

nothing to do with privacy legislation or statutory burden. That 

was purely a question of turf and institutional issues, which I still 


072203.ABM
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33

don’t think are addressed by the way. But the PATRIOT Act said 

that information collected for law enforcement purposes under the 

Grand Jury Authority, under the Title III Wiretap Authority, could 

henceforth be shared with the intelligence agencies. 

Now, when Congress created the Department of Homeland Security and gave it the intelligence, fusion and analysis function of 

taking all of this information from the law enforcement side and 

from the intelligence side and putting it together, trying to connect 

the dots, Congress set up an Officer for Civil Rights for the Department of Homeland Security and a Privacy Officer and gave those 

officials explicit authority to address the privacy concerns. 

Now, what has happened? The President has taken that intelligence fusion and analysis function away from the Department of 

Homeland Security and given it to an agency, the so-called TTIC 

under the CIA, where there is no Privacy Officer that anybody 

knows of, where there is no Civil Rights or Civil Liberties Officer, 

and where there is not the congressional oversight. Actually, the 

full Judiciary Committee, along with the full Homeland Security 

Committee, are holding a hearing this afternoon on this very issue 

where this will be raised. But that’s an example of where I think 

Congress to some extent in the Homeland Security Act may be recognizing that the PATRIOT Act had gone overboard in some respects and didn’t have the adequate checks and balances. I think 

Congress was trying to create some oversight in the Homeland Security Department, and now we are seeing all of that analysis and 

sharing and accumulation of information occurring outside of that 

oversight process. 

Mr. NADLER. Can I ask one more question with the indulgence 

of the Chair? 

Mr. CANNON. Without objection. 

Mr. NADLER. You said that the PATRIOT Act—that was never a 

bar—no aspersions—there was never a bar for sharing of information gathered by intelligence agencies for law enforcement purposes 

and that what the PATRIOT Act did was to enable the sharing of 

information gathered for law enforcement purposes for intelligence. 

I thought it was the other way around. And I would think that 

since we established in the FISA act of 1979 I think it was, a lower 

bar for gathering—for invading privacy and gathering information, 

for suspected foreign intelligence agents, that under the 4th 

amendment, in other words, you don’t need the same evidence and 

the same probable cause to get a search warrant and so forth for 

foreign intelligence, that since you now are invading peoples’ privacy if you are suspected of being a foreign intelligence agent in 

a way you wouldn’t do if you suspected them of being thieves or 

murderers, that the point is, if they are not foreign intelligence 

agents, you have to protect against that information coming into 

the domestic criminal side, because otherwise you are undermining 

the 4th amendment, and it’s not the other side that is the other 

problem because you have a higher standard before you can collect 

the information on the other side. 

Mr. DEMPSEY. Congressman, you are talking about what is called 

the Primary Purpose Test. Under the Primary Purpose Test, which 

was used in the Foreign Intelligence Surveillance Act, the primary 

purpose of the surveillance had to be the collection of foreign intelVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 00975 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230

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ligence or counterterrorism information because of the lower standard. That was the purpose. But once that information was collected——

Mr. NADLER. If you met that purpose. 

Mr. DEMPSEY. If you met that purpose, under FISA from 1978, 

it was always permissible to share that information with the law 

enforcement authorities, and there were 50 or 60 or 70 cases where 

that was done, obviously espionage cases which start out as counterintelligence cases turn into criminal espionage prosecutions, that 

could always occur. 

The problem that I saw, and others saw, with the PATRIOT Act 

was starting out with the purpose, the going in for the purpose of 

collecting criminal evidence under that lower standard. Now, the 

Justice Department and the FBI really got their knickers in a twist 

with the FISA court misinterpreting that whole——

Mr. NADLER. They misinterpreted or the court misinterpreted? 

Mr. DEMPSEY. It was unfortunately done in secret, even the interpretations of law. They all were just flat out misinterpreting 

that legislation in a way that did not really even protect privacy, 

and they had this almost perverted interpretation of that law saying that they had to create this complicated law and went in 

swearing, the FBI and Justice Department, that there was no 

criminal interest in people where there clearly was a criminal interest. The whole thing got completely perverted in a way that did 

no good for privacy and no good for national security. 

I am not sure that the solution Congress picked was the right solution. I think that merits revisiting. But it’s a classic case of 

where you take the interpretation of law and put it into a secret 

box. It’s all ex parte. It’s only the Government talking to the Government, and it did not well serve either privacy or national security. 

Mr. NADLER. Thank you, and I thank the Chair for his indulgence. 

Mr. CANNON. This is really quite an interesting hearing. I feel 

badly having gone way beyond my time. Maybe we can go to a second round if there are more questions. 

Mr. Chabot? 

Mr. CHABOT. Obviously, I think we would all agree we want to 

do whatever we can to make sure that our country is protected 

from terrorism and that we’re safe as we possibly can be. But as 

the Government discussed this program, such as the Defense Department’s Total Information Awareness Program as you had mentioned, Ms. Murphy, and the Transportation Security Administration’s Computer-Assisted Passenger Prescreening System, I think 

what you addressed as well, does it seem that either the Defense 

Department or the TSA took sufficient time, looked closely enough 

at privacy implications on law-abiding citizens, and how do you 

think considering personal privacy rights during the regulatory 

process could have enhanced or improved these particular regulations? 

And I’d ask each of the members if they would like to address 

that. Mr. Barr, I go to you first. 

Mr. BARR. Of course, Mr. Chairman, a fundamental problem is 

no matter what mechanism you have in place, if you don’t have 


072203.ABO
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35

people who care about it and whose mission it is to abide by the 

law, the system is not going to work. One of the reasons that I suspect, for example, that we see more and more Federal agency use 

of outside databases, that is private databases, is for the very reason that Mr. Dempsey indicated, and Mr. Nadler expressed concern 

about, in his opening statement, and that is to avoid the strictures 

of the Privacy Act or in some cases FOIA. If, in fact, the agency 

can tell an aggrieved person, who believes they are aggrieved, they 

don’t know it, perhaps, but they believe they are an aggrieved 

party because the Government has misinformation on them or is 

misusing information on them, they can avoid having to answer 

any questions or disclose the information by saying it is not our information, it is not a Government file. That is an increasing problem. And it’s one reason why I do think that an additional matter 

that the Congress needs to look into is the Privacy Act itself and 

Freedom of Information Act. These laws were put together for very 

laudable purposes a generation ago, but now the technology that’s 

now available both to private industry and to the Government is 

light-years ahead of where it was when these laws were crafted. So 

I think that’s a very real concern. Whether or not some of the problems that we’re now seeing would have come to light with regard 

to the Total Information Awareness or whatever they are calling 

TIA nowadays or CAPPS II, could have been avoided by a more 

timely and a more public, you know, exposure to this and discussion of this, I think clearly, yes. But the problem is that the development of TIA is not something that Congress mandated in the 

first place. It wasn’t that the Defense Department said—had this 

forced upon it. It was an idea that they took some general language, and I think it was in the Department of Homeland Security 

Bill, and said, hey, this means we’ve been given this general charge 

to try to come up with ways to better identify terrorists, and they 

take that ball and ran with it in all sorts of different directions. 

The one point that Senator Grassley made before he had to leave 

is a very, very important one and that is no substitute for true 

oversight, not just occasional oversight, not just superficial oversight but to ask some fundamental questions about some of these 

programs that are being developed because they do not reflect congressional intent. 

Mr. CHABOT. Let me just mention something that you mentioned, 

Bob, about the oversight. If we’re successful in passing this legislation, and I think, ultimately, we will be, I think we have to be very 

vigilant that it doesn’t become ‘‘check this form’’ or this is a ‘‘thing 

done by the agency’’ and no one takes it seriously. So I think we 

have to have considerable oversight to make sure that every department goes through every regulation and rule to ensure that 

Americans’ privacy rights are protected. 

Mr. Dempsey? 

Mr. DEMPSEY. Mr. Chairman, that certainly is an excellent point 

you just made. In terms of the CAPPS II Program, the Air Passengers Screening Program of the Transportation Security Administration, I will say that that agency is now seriously considering 

the privacy issues. They have now a Statutory Privacy Officer, 

Nuala O’Connor Kelly, 


072203.ABP
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36

Who I think was an excellent choice for that job and is really trying to bring attention to the issues. 

The Agency, before she came on board, issued a Privacy Act Notice which was completely unintelligible. You couldn’t even tell 

what they were talking about and they were basically saying, well, 

we can do anything and collect anything and keep it for as long as 

we want. They are now in the process of drafting a new Privacy 

Act Notice. They are also in the process of doing a Privacy Impact 

Assessment, because, as I said, the Homeland Security Act does 

provide for Privacy impact assessments, unlike other Government 

agencies. I’m afraid that the—I’m still not sure how that’s going to 

come out. I’m still worried about mission creep, terribly worried 

that some in the Agency are going to try to take an air passenger 

screening system and turn it into a general law enforcement system, which I think would be a disaster for both privacy and air 

safety. 

In terms of TIA, I spent, personally, a fair amount of time now 

with Dr. Popth, the Deputy Head of that and the person in charge 

of TIA. They are trying to understand the privacy issues. They had 

to be brought to it by Congress, by the Grassley amendment and 

forced to issue a report. The report still doesn’t come close to answering the questions, as Mr. Barr alluded to. They say in the report, we will only use in TIA, the information to which we are lawfully entitled. Well, we’ve gone through the various privacy laws 

and shown that again and again in those laws, there are major 

loopholes for national security or for intelligence, et cetera. Now obviously, we have a serious terrorist threat that we face, and absolutely we need to use information and information technology as 

one of our strongest weapons in that fight. But to say that there 

will be a blanket exception, I think, undercuts both the security 

goals as well as the privacy values. And we need to build those 

checks and balances back in. I think on the TIA, we’re not close 

to there yet. Particularly, when we think about how that will be 

deployed outside the Department of Defense, and how, perhaps 

even not under TIA, agencies are developing data-mining capabilities already, which needs to be looked at. 

Mr. CANNON. Thank you, Mr. Dempsey. 

If I might just point out, you have touched on the whole array 

of issues that we need to be concerned about. I want to thank Mr. 

Barr for his foresight when he was Chairman of the Commercial 

and Administrative Law Committee in identifying these privacy 

issues, establishing an oversight or an approach to them. And on 

the Judiciary Committee, we need to figure out where we are going 

to do this and continue to do it so that we have an oversight function that is effective. I just don’t think we have it anywhere else 

in Congress. So I thank you very much for that. 

Mr. Scott, would you like to ask questions? 

Mr. SCOTT. Sure. 

Mr. CANNON. The gentleman is yielded 5 minutes. 

Mr. SCOTT. Thank you, Mr. Chairman, and I thank you for calling the hearing. I would like to thank all of our witnesses. Mr. 

Barr, many others, worked on the PATRIOT Act, and I think made 

significant improvements in that Act as to some real constitutional 

problems and appreciated working with him on that and other bills 


072203.ABQ
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37

where privacy was an issue. Mr. Dempsey and Ms. Murphy have 

been outspoken critics of many things that this Committee has 

done, and I think we have benefited from that criticism. 

Mr. Dempsey, I share the same concerns as the gentleman from 

New York pointed out with getting information under the—under 

FISA, where there is virtually no limit to what you can get. Bona 

fide curiosity is about the only standard you need to get information under FISA. And when you can start using that in criminal 

investigations, I think you have gotten into real problems, particularly when all these people are working together, FBI agents and 

TIA agents working on the same task force, you have the incentive 

for one to say, you can get it and don’t have to worry about probable cause, and if you find anything, let us know, offers real problems. 

So I just want to indicate that I share the same concerns that 

he did. One of the questions on the legislation, I think, we see what 

the problem is. The question is how this bill would actually help. 

What information would no longer be available if this bill had been 

in force? 

Mr. DEMPSEY. I think that we would have seen a more careful 

design of information collection. I think in the Committee report 

last year on this legislation, it pointed out, for example, the kind 

of information that is being collected under some of the Federal 

health care systems where just a huge amount of information is 

being collected, stored under the Social Security number, and I 

think that if this bill had been in place, the question would have 

been forced, do you really need to collect all of this information? Do 

you need to store it under a Social Security number, where it’s 

most vulnerable to theft and misuse? Do you need to keep it forever, or shouldn’t you establish some limits on how long it can be 

kept? 

I think if you’re looking at the Veterans’ Administration computer systems, if you are looking at the Health and Human Services new-hires database, I think there are a host of regulatory databases that were created over the past five or 10 years which never 

got the kind of scrutiny. Congress may have put—as Mr. Barr suggested—may have put one sentence into legislation, but then the 

Agency uses as the justification for a huge data collection effort. 

And the purpose of H.R. 338 is to say, sort of, stop, look and listen. 

Pause before you go into this data collection. Solicit comments. Listen to them. Take them into account. Then the Agency can go 

ahead under this legislation with the data collection. 

This is not telling the Government to stop doing anything. If the 

need is there, if the justification is there, H.R. 338 allows it to go 

forward. But it focuses the attention of the Agency up front in the 

design phase. So that they can build in audit trails, for example, 

to protect against abuse. Far easier to do that when you’re building 

the system than after the fact. 

Mr. SCOTT. Before my time expires, as you’ve indicated, does 

nothing check the power of a bureaucrat to get information and 

misusing it? Would this bill create any hardship on an agency? Is 

there any compliance problem with an agency complying with this? 


072203.ABR
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38

Mr. DEMPSEY. Well, I think that they are subject to judicial oversight on this. But the CBO found last year that the legislation 

would not impose any significant cost on the agencies. 

Mr. SCOTT. Have any crimes been discovered using all of this information that’s floating around, all of this private information? 

Has invasion of privacy done any good? 

Mr. DEMPSEY. Well, in individual investigations, this information 

can be very useful. When you’re dealing with the question of data 

mining, I think there’s no evidence that it’s useful yet. It may be 

there. 

Mr. Chairman, if I could just point out one example, the FINCIN, 

the Financial Crimes Information Network, which collects, by regulation, millions and millions of reports on banking transactions, 

supposedly to spot money laundering. I think reviews of that system have found that it has had very, very little, if any utility in 

spotting money laundering, just based upon the flows of money 

transactions. And yet, that continues to suck in more and more of 

these currency transaction reports year after year after year. I 

think that’s an example of where this attempt to scan large databases does not produce the kinds of results. The focused, particularized suspicion of the 4th amendment does produce results, and 

I think that’s where we need to focus. 

Mr. CANNON. Thank you, Mr. Dempsey. 

I think we have two more people who would like to ask some 

questions, and there’s a vote that is coming up. And so if we keep 

fairly short on the answers. 

Go to Mr. Coble and Mr. Watt. Mr. Coble you are recognized. 

Mr. COBLE. Mr. Chairman, thank you for calling the hearing, and 

thank you all for being with us. 

Most Americans guard their privacy very jealously, as do I. And 

until these murderers came calling on 9/11, many Americans and 

probably most Americans, regarded domestic terrorism sort of indifferently. You know, it will never happen here. I don’t mean that 

they’re uncaring about, but it will never come to our shores. Well, 

it came to our shores. And those who regard our privacy jealously—

I don’t mean that we need to compromise our privacy, but we need 

to be a little more flexible than we were. 

Good to have you back on the Hill, Mr. Barr. How do you respond, folks, to those who say that society’s interest in protecting 

privacy must take second place to the prevention of terrorism? 

Must the former inevitably fall victim to the latter, A? And B, some 

of the Government’s most aggressive surveillance technologies, I 

am told, are described as being intended for overseas use. What 

safeguards are in place to ensure that they are not deployed domestically? 

And let me start with you, Mr. Barr. 

Mr. BARR. As always, Colonel, you have put your finger on two 

extremely important issues. The answer to the last one is, there’s 

nothing in place. And this was a paradigm in a recent discussion 

played out in the newspapers with regard to something called CTS, 

combat zones at sea, and this is a program again being developed 

at DARPA, supposedly, for use in urban environments overseas by 

our military to marry up an array of surveillance cameras with 

digitized computer and facial recognition to track cars and people 


072203.ABS
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39

over time and record and store all of that data from those cameras. 

As soon as word got out on this, then there have been and this is 

reported in the paper, police chiefs and law enforcement officials 

across America they’re saying this would be a good tool to use in 

urban environment for law enforcement purposes in this country. 

This is the problem—one of the problems with getting the Defense Department involved in data collection and developing techniques to gather, manipulate, store and use and possibly abuse 

data on citizens. There’s no checks or balances on it, and that’s 

something that Congress really needs to look at in the context of 

all of these different programs. And I’ll leave it to perhaps, Mr. 

Dempsey, and I have already forgotten——

Mr. COBLE. First question. 

Ms. MURPHY. I think the question is a valid one because we are 

asking the public to give up its privacy protections in the name of 

assuring national security. And I think the question we have to answer is what went wrong with the terrorism attacks that we have 

experienced in the United States? And I think Members of Congress should be in a position to fix the things that went wrong, 

rather than giving the agencies cart blanche to gather information 

on people who are not convicted of any criminal activity or not suspected of any criminal activity, rather than allowing those agencies 

to collect that data like TIA would or like CAPPS would. I think 

the Congress must insist that it fix the problems that will provide 

real solutions to our national security. And it’s interesting, the 

ACLU is polled on these questions on about whether or not there 

should be these trade-offs. 

And increasingly, the further out we get from 9/11, the more citizens are less willing to give up their privacy. And conservatives 

and focus groups, in particular, have been angered by what they 

see in terms of encroachments on their privacy, and they think 

about what would happen if Attorney General Hillary Clinton had 

these powers, and who would she investigate, and then people 

begin to step back and say look, we need to have a standard for 

protecting our privacy and not react in the haste of the moment. 

And I think most American people are reasonable. But if you asked 

them a month after September 11, they’ll say I don’t have anything 

to hide. Take my private information. But I think people are being 

much more reasonable and are questioning and challenging the 

Government more from all sides of the political spectrum. 

Mr. COBLE. Mr. Chairman, in the interest of time, I yield back. 

Mr. CANNON. I thank the gentleman. And Mr. Watt, you are recognized for 5 minutes or as much time as you may consume before 

we have to leave to catch this vote. 

Mr. WATT. I thank the gentleman for yielding time. 

And let me do two or three things. First of all, I want to join my 

colleague from North Carolina in welcoming our former colleague 

back, we missed you. We especially miss you in areas like this 

where individual liberties are at risk, because we need and needed 

that balance from both sides emphasizing these issues, and I 

haven’t heard that as aggressively since you have been gone. 

Second, thanks to the Chairman for calling the hearing. It’s an 

absolutely necessary and important hearing. 


072203.ABT
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40

Third, I said in a press conference when the bill was introduced 

originally, a couple of years ago, whenever it was, that I supported 

the bill. I still support it. I think it’s not revolutionary. And we 

need to get some control over this area. 

Fourth, I’m not sure that I am as optimistic as Mr. Chabot is 

about the prospect for moving this bill and getting it passed and 

signed into law. I’m a little more cynical, I think, in my views 

about this, because I’ve seen the agencies—the bureaucrats, the bureaucracy that would be potentially impacted by a bill such as this 

work behind the scenes, underground, undercover to sabotage the 

passage of a bill such as this. I don’t know why it didn’t move in 

the last term of Congress. Perhaps it was the lateness of moving 

it, but this bill should have moved. I’ve seen those agencies take 

the PATRIOT Act and turn it from something that was a strongly 

bipartisan bill in the Judiciary Committee, that we thought had 

the support of the Administration, to a bill on the floor that many 

of us could not support because the bill got rewritten between the 

Judiciary Committee and the floor of the House by people, most of 

whom weren’t even lawyers and didn’t understand the privacy or 

personal liberties consequences of what was being done. 

Mr. CHABOT. Would the gentleman yield? It did pass in the 

House. It was in the Senate. 

Mr. WATT. I know it did pass in the House, didn’t pass in the 

Senate. I’m aware of that. Finally, I’ll ask a question now that I 

have gotten all those things off my chest. I’m wondering if anybody 

can distinguish for me what the difference is between the Defense 

Department’s Total Information Awareness Program, which is 

what the original name was, and the Defense Department’s Terrorism Information Awareness Program? Is there substantively, in 

your experience, any difference between what they’re doing just by 

changing the name from one thing to another? 

Mr. BARR. Unfortunately, I don’t think so, Mr. Watt. It’s a trick 

that we’ve seen over and over again. You change the name of something and hope that attention will thereby be deflected at the same 

time. It’s the same program, only by a different name. 

Mr. DEMPSEY. I agree with Mr. Barr, there is no difference. 

Mr. WATT. So we should be concerned? 

Ms. MURPHY. I agree, too. And the fact that they have changed 

their Website several times and changed their name once, is an indication that they are sensitive to public criticism about their mission. So I would suggest that even though it is now called Terrorism Information Awareness, it still is vulnerable to congressional oversight and public criticism as it started out to be. 

Mr. WATT. I’ll say one final word. I think it’s important for us 

to continue our vigilance in this area without bringing you all back 

after the votes because this Committee, the only way we can data 

mine into what they’re data mining into is by doing effective oversight, and we need to get into all of these sources and programs 

and figure out what our Government is doing and in some cases 

what private enterprise is doing. And I strongly support that and 

I yield back. 

Mr. CANNON. I thank the Ranking Member—and let me just 

point out what he calls cynicism, I view as duty. There is a duty 

in this body to be cynical of what the executive branch does whethVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 00982 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230

072203.ABU
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41

er they are of the same or different party. And we intend to continue this. 

I want to thank our panelists—we are very short on time. You 

are welcome to leave here. I will just wrap here and state that I 

really appreciate your comments. I wish we had more time. I think 

it is best for you that we end this now because you would have to 

wait for awhile. But a number of things you said have suggested 

ideas for new hearings. I hope you’ll work with staff and help us 

flesh some of those ideas out. 

Along with Mr. Watt, I feel—Mr. Chabot, I feel a keen urgency 

about exploring these issues, about using legislation and oversight 

to contain the administrative and executive functions that are moving forward at a very rapid rate. So I thank you for your time and 

this hearing is now adjourned. 

[Whereupon, at 11:47 a.m., the Subcommittee was adjourned.]

Æ


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THE ROLE OF SCIENCE IN RULEMAKING 

TUESDAY, MAY 9, 2006

9:00 a.m.—Intro/Welcome 

Neil Kerwin, Interim President, American University, Director of the 

Center for the Study of Rulemaking

9:15–10:35 a.m.—Panel 1: 

‘‘OMB’S RECENT INITIATIVES ON REGULATORY SCIENCE’’

Moderator: 

Curtis Copeland, Congressional Research Service

Panelists: 

Don Arbuckle, Acting Administrator, Office of Management and 

Budget—Office of Information and Regulatory Affairs

Al Teich, Director of Science and Policy Programs,

American Association for the Advancement of Science

Bill Kovacs, Vice President for Environment, Technology &

Regulatory Affairs, U.S. Chamber of Commerce

Rena Steinzor, Professor, University of Maryland School of Law,

and Co-Founder of the Center for Progressive Regulation

NEIL KERWIN. Good morning everybody. I’d like to get us started 

this morning with a couple of introductory remarks. My name is 

Neil Kerwin. I am the interim president of American University 

(AU). I’m also a professor of public administration in the School of 

Public Affairs and the director of the Center for the Study of Rulemaking. I want to welcome you all to American University. I want 

to welcome you all to our still brand-new Katzen Center for the 

Arts, and in particular the Abramson Recital Hall. This is a session 

that I expect will be a stimulating and informative exploration of 

a topic central to the public policy process in the United States and 

in the process, of course, the quality of life in the United States. 

I have a number of people I’d like to thank. We have partners 

in this this morning. The Subcommittee on Commercial and Administrative Law of the Judiciary Committee of the House of Representatives was the stimulus, I think, behind this particular session. The Congressional Research Service, and particularly Mort 

Rosenberg and Curtis Copeland were critical in the development of 

the session. And they worked very closely as an organizing committee with two members of the American University faculty, who 

you will hear from a little later today: Dr. Laura Langbein, who is 

the director of the doctoral program in the School of Public Affairs, 

and Jeff Lubbers, a professor in our Washington College of Law. 

A session of this sort is one that the Center for the Study of 

Rulemaking takes as part of its mission. When we created the Center a couple of years ago, we were frankly still surprised and somewhat bemused that we were still the only one in the United States 

devoted exclusively to the study of a process of government that deserves a great deal of focused, organized, and institution-based attention. The field of rulemaking studies is happily, I believe, growVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 01253 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230
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ing. It is diversifying, but frankly only slowly and certainly not— with regard to the amount of time and attention spent in the social 

sciences, at least, still not reached the points that other administrative processes have in terms of organized research. The intellectual debt that’s owed to a still fairly small number of legal scholars, political scientists, policy analysts, and students of public administration is very great. But I happen to believe that their work 

has barely scratched the surface of a process that has become, in 

my view, irrefutably the most important source of law in America. 

Today’s focus is on the role of science in the rulemaking process. 

Whatever definition of rulemaking you prefer, whatever element of 

the process you choose to concentrate your professional attention 

and energies on, at its most basic, rulemaking is the transformation of information into legal obligations and rights. That information takes many forms, but the type of information that contributes most profoundly to a vast swath of rulemaking can be 

broadly categorized as scientific. Today, the panels focus on the 

state of scientific information in rulemaking, fully cognizant of the 

fact that scientific information contributes to a number of other 

stages in the regulatory process. I have been asked by the panels 

and the organizing committee to remind everyone that the focus is 

indeed today on rulemaking, so I would ask that all of us emulate 

the scientific method by staying to the extent we can on task, with 

discipline and perseverance, whatever the temptations to stray 

might be. 

Again, I do want to thank a number of people for assisting in the 

organization of today’s activity—Susan Jensen, Brenda Hankins, 

and Mike Lenn, Counsel to the Subcommittee on Commercial and 

Administrative Law, Mort Rosenberg, and Curtis Copeland from 

the Congressional Research Service, Jeff Lubbers, again, who I 

think many of you know as the author of ‘‘The Guide to Federal 

Rulemaking,’’ which is, as best I can determine, Jeff, the major 

competitor to my text on rulemaking. It’s a terrific book and a very 

bad career move. 

[Laughter.] 

Mr. KERWIN. And Laura Langbein, who is, I think as many of 

you know, a scholar of the regulatory process more than 20 years 

standing—they are the people who made this happen and who deserve the credit for the extraordinary group of scholars and experts 

that have been assembled here today. 

So without further ado, and to introduce our first panel, let me 

turn to our colleague, Curtis Copeland. 

[Applause.] 

CURTIS COPELAND. Thank you, Neil. The first panel today is on 

the Office of Management and Budget’s (OMB) recent initiatives in 

the area of science and rulemaking. In recent years, OMB has 

taken a number of actions—some unilaterally, some at the urging 

of Congress—that are expected to have a significant effect on rulemaking and in particular regulatory science. First, the Information 

Quality Act (IQA) or Data Quality Act enacted in December 2000 

required OMB to issue guidance to federal agencies to ensure and 

maximize the quality, objectivity, utility, and integrity of information disseminated by federal agencies. OMB published the final 

guidelines in September 2001 as required by the statute and repubVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 01254 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230
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lished the guidelines in February ’02. The guidelines were highly 

detailed, imposed higher standards of quality on quote, unquote, influential science information with a clear and substantial impact on 

important public policies or private sector decisions. 

In September ’03, OMB issued a bulletin on peer review and information quality that proposed establishing a process by which all 

significant regulatory information would be peer reviewed. The proposed bulletin was extremely controversial and generated nearly 

200 comments, including comments from members of Congress and 

prestigious scientific organizations. As a result, in April 2004, OMB 

published a significant peer review bulletin that was broader in 

scope than the earlier bulletin but gave agencies substantial discretion to decide when information was influential. But OMB also retained a great deal of discretion to decide when information was 

highly influential. OMB published a similar final version of the 

bulletin in January 2005. 

And finally in January 2006, OMB published a proposed bulletin 

on risk assessment for public comment and peer review by the National Academy of Sciences (NAS). Risk assessment is defined in 

the document as that which assembles and synthesizes scientific 

information to determine whether a potential hazard exists and/or 

the extent of possible risk to human health, safety, or the environment. The bulletin establishes general risk assessment standards 

and establishes special standards for influential risk assessments. 

Comments on the bulletin are requested by June 15, 2006. 

What we want to do today is hear from a variety of perspectives 

on these initiatives, and we’ve assembled an illustrious panel to do 

so. Leading off will be Don Arbuckle. Currently—and Don didn’t 

send me his bio so I had to make this up. Don is currently the acting director of OMB’s Office of Information and Regulatory Affairs 

(OIRA). In that capacity, he oversees presidential review of regulatory, statistical, and information policy throughout the executive 

branch. Before becoming acting director in March—I believe this is 

your second tour, right? At least? It feels like more than that. Don 

had served as deputy director of the highest career position in 

OIRA since 1996. He has been at OIRA since its creation in 1981. 

Don? 

DON ARBUCKLE. I’m going to talk from here if you don’t mind. 

There is no podium that I’ve ever met that has designed for the 

95th percentile male. Curtis and Neil both have indicated that the 

focus of this seminar is on recent regulatory developments. ‘‘Recent’’ is of course—all is relative. There are some of you out in the 

audience who have been associated with this field of endeavor for 

many, many years. Mr. Tozzi, for example, one of those who was 

here at the creation, has been involved in this since Gondwanaland 

broke up and the Atlantic was formed. But others of you have been 

here for a lesser period of time. 

But I wanted to point out that, in general, OMB’s role in science, 

if you will, or the agencies that practice science is very broad and 

goes back about as far as OMB. The budget side in the budget 

process reviews agencies that are predominantly scientific agencies, 

or those programs that use science. We now have a management 

side that evaluates programs through an exercise we call the 

PART—Program Assessment Rating Tool. It has spawned, in anVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 01255 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230
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other case of Washington verbing the noun, a verb called PARTed; 

a program can now be PARTed. And our procurement and financial 

sides have of course looked at those aspects of agencies that use 

science and thus have some influence ultimately over those programs. 

OIRA also—as Curtis noted, formed in 1981—has a long history 

engaging in all sorts of information collection and review, including 

regulatory, under the Paperwork Reduction Act, which specifically 

mentions information quality and the desirableness of this trait. 

Executive Order 12866 also indicates that one of the principles that 

agencies need to use when regulating is to use the best scientific, 

technical data available, the highest quality data. Our guidelines 

on performing cost-benefit analysis, now section A4, which is the, 

excuse me, most current version of those guidelines, also mentions 

the need to use the best possible scientific as well as other types 

of data and information when doing rulemaking, which is the very 

difficult task of trying to predict how humans and institutions will 

act in the future and how to direct that activity in a way that 

solves the problem that you’re looking at and doesn’t create a set 

of new problems—a very difficult job that the agencies have. 

And then finally, of course there are these activities that Curtis 

mentioned, starting with the Information Quality Act, which was 

passed, I believe, in 2001. It has been alleged that this Act came 

in the dead of night—a one-line statute in the dead of night. This 

is a scurrilous lie. It’s actually 38 lines long, although—— [Laughter.] 

Mr. ARBUCKLE. —in that sort of bill text that the Congress uses, 

it’s true that some of the lines are only one word long. Nevertheless, it is the law, and we met its mandates, publishing first guidelines to help ensure and develop the quality of information. The 

four standards in the act—quality, integrity, utility, and objectivity—were not defined so we started off by deciding that quality 

was the sum of the other three to sort of reduce our job by 25 percent anyway. So we defined and we explain in some detail in the 

guidelines themselves integrity and utility, which are reasonable 

straightforward and intuitive definitions, and objectivity, which is 

much more difficult and which takes up a good deal of the definitions section actually in the guidelines. 

We do make this distinction that Curtis mentioned in information quality with influential scientific, financial, and statistical information, where we believe that the rigor of the application of the 

standards should be—should be higher, should be more. And in 

particular, the concepts that are focused on there are reproducibility and transparency. Literal reproducibility is not feasible, but 

it is, as a general matter, part of the scientific method. And transparency to make clear your assumptions and procedures and practices has definitely long been a part of the tradition that we call 

the scientific tradition, but it’s part of a much larger breadth of 

thinking over the last 500 years or so. 

One of the issues that we raise in that bulletin is peer review. 

That is, documents that have been peer reviewed are more or less 

assumed to have passed a test for objectivity. We issued a set of 

guidelines on peer review several years later after the Information 

Quality Guidelines, and these make a separation between influenVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 01256 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230
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tial scientific information, which—picking up on the Information 

Quality Guidelines—and highly influential, is—in sort of rough 

terms, information or documents that could be used that might 

have an impact of more than $500 million annually. That is a 

rough threshold that we chose in order to try to distinguish where 

it made sense to have peer reviews which can be, aren’t necessarily, but can be very energy, financially, and time intensive— where it made sense to do that, given that the possible impact of 

the action might be that substantial. 

And then finally, we have published out there, as Curtis mentioned, for public comment, Guidelines on Risk Assessment. These 

were published in January. The comment period is still in effect, 

still going on. We also have referred these draft guidelines to the 

National Academy of Sciences. The panel has been chosen, and 

they are planning a public meeting. The first panel meeting and 

public meeting is at the end of this month, the 22nd and 23rd. I 

imagine some of you will be interested in attending that. The panel 

has been asked to look at the Risk Assessment Guidelines and to 

try to make sure that we are following the practices that the NAS 

itself has recommended in several studies over the course of the 

years to try to articulate both the benefits of this method of increasing the information attached to certain risks and hazards. 

They are trying to have a guidance bulletin that is broad enough 

or, let’s say, specific enough to present best practices for the government but flexible enough to—for agencies that deal in very different types of endeavors to be able to use. 

So that’s a summary of these various activities. We are very 

much doing this in a manner that encourages public comment. If 

necessary, as we did with the Peer Review Guidelines, if it turns 

out that we’re far off the mark, we can publish the guidelines again 

for a second round of comment. That proved to be extremely beneficial in the peer review context, and I think we wound up with a 

document after that was generally regarded as being—as capturing 

the essence of that, even if you don’t like OMB being the capturer 

of the essence. And we’re certainly interested in doing the same 

thing with risk assessment. This can be very highly technical. It’s 

involved in issue areas that are highly controversial and politically 

sensitive—human health, safety, and the environment. So it’s extremely important that the government be getting this right as 

often as it can and be paying attention to the general best practices 

that have evolved over the past 20 years or so. 

So I think I’ll stop there and let my other panelists join in. 

Mr. COPELAND. Thank you, Don. 

Before I go on, I should say that we had a conference call on Friday afternoon sort of as the minimal planning that we did for this 

panel. And each of the panel members agreed to limit their remarks to about 10 minutes to allow for about 40 minutes of questions at the end because they all felt that the best part of this 

would be the questions and answers. So I encourage you to be 

thinking of the questions and answers as we go along. 

The next panel member is Al Teich from the American 

Associqation for the Advancement of Science (AAAS). He is the director of Science and Policy Programs at the AAAS. In this position, he is responsible for AAAS’s activities in science and techVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 01257 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230
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nology policy, directing a staff of 40 and serving as a key AAAS 

contact on science policy issues. He is a fellow of AAAS and a recipient of the 2004 Award for Science Achievement and Science 

Policy from the Washington Academy of Sciences. He is a member 

of the editorial advisory board to several journals, the author of numerous articles and book chapters, including a chapter on technology and government in the Encyclopedia of Science, Technology, 

and Society, and the editor of several books, including ‘‘Technology 

and the Future,’’ the most widely used college text in technology 

and society. 

Al? 

[Cross talk.] 

AL TEICH. Good morning. So I’m representing the science community, I guess—the token scientist up here among this group of 

lawyers—and I’m going to talk about the Peer Review Guidelines 

and our experience with them and a few comments along the way. 

As Don said, OMB issued its Peer Review Guidelines or a proposed 

bulletin in September of 2003. This was—under the Data Quality 

Act—part of an ongoing effort to improve, as you can see, the quality, objectivity, utility, and integrity—all those good things—of the 

information disseminated by the federal government. 

Peer review is a very widely used practice in science, but when 

OMB issued these guidelines, the immediate reaction was controversy and a certain amount of consternation in the scientific 

community. Why did this stir such controversy? As I said, peer review is very widely used in science. It’s used for choosing projects 

by project sponsors, funding agencies. It’s used for decisions in academia on promotion and tenure and other rewards that academic 

institutions give to their faculties. It’s used for decision making in 

publication. People send out articles for peer review, of course. 

Journals send them out. AAAS’s own journal, Science, has a rigorous peer review system. So what’s wrong with the idea of peer 

review in the context of OMB, in a context of regulations? 

Peer review can do a variety of things, and there are certain 

things that it can’t do. In science, peer review can determine the 

significance of a piece of work or of a proposed project, or at least 

it can give you the considered judgment of a group of scientists who 

presumably are qualified to make that judgment. It can assess the 

soundness of methods. And when something passes peer review 

then is published, it’s thought that this gives it a certain amount 

of credibility in kind of an imprimatur of science on a set of results. 

But it doesn’t mean that they’re necessarily correct. It only 

means that they have been reviewed and that they are worth considering. It’s not infallible—articles contain errors, and articles can 

even be based on misconduct and ethical breaches. So it’s not infallible, and we had a very public example of that not long ago when 

Hwang Woo-suk from Korea was found to have fabricated results 

in the area of stem-cell research that were thought to be revolutionary. They had been published in a number of places, including 

our own journal, Science. Turned out that he never did the experiments. So peer review will not necessarily pick up those kinds of 

things, and it won’t pick up science that contains errors necessarily 

either, although sometimes it does. 

1259

So, if peer review is such a widely used method within science, 

what were the reasons for the negative reactions to OMB’s proposal? Well first of all, there was suspicion of OMB’s motives. 

There were certain questions as to, what is the problem here? 

Here’s the solution. What’s the problem that we’re trying to solve? 

Is there a problem with peer review of regulations that need to be 

addressed? And then there were the specific provisions of those 

guidelines, which placed strict constraints on the choice of reviewers—and I’m talking about the first proposal—the initial draft. 

There were questions about the potential anonymity or lack thereof 

of reviewers. There was the possibility for open public comment, 

which didn’t have the constraints that the peer reviewers had. And 

there was the issue of possible litigation based on this, and that 

was one of the reasons for suspicion that people thought, aha, this 

is a way of undermining the regulatory process by tying things up 

in knots. 

So scientists were suspicious of this in large part, I think, because the Data Quality Act, as Don said, was slipped into an appropriations bill in 2000. It was a very small provision. Nobody noticed it. It went completely unnoticed by the scientific community 

until it was written into law. There’s no legislative history. There 

were no hearings, no floor debates, no committee reports. And yet, 

the Chamber of Commerce, called it the most significant change to 

federal rulemaking process since the Administrative Procedure Act. 

It was introduced in the House by Jo Ann Emerson; in the Senate 

by Richard Shelby. 

If it is so significant, why is there no legislative history? One has 

to ask, you know, if this is such an important thing, is this the way 

we’re supposed to be making laws in this country by putting provisions into unrelated acts without any kind of legislative consideration, especially things that are presumably as significant as they 

were said to be? Well, Jim Tozzi—his name was mentioned by Don. 

We have to thank Jim, I think, for this. Jim, are you here? I 

haven’t seen him. Okay—hey, add to your fame here. Anyway, 

many scientists looked at this and said, well, this looks like a 

means of attacking regulation by attacking the science behind it. 

So as I said, they asked, what is the problem it was seeking to 

solve? And somehow they—you could draw the implication that the 

most important science in terms of regulations was not being adequately reviewed and had question whether that in fact was true. 

So looking at the comments that came from the scientific community, they focused on a number of things. First of all, they focused 

on the constraints on the selection of peer reviewers. They gave little discretion to the agencies. Peer reviewers were excluded if they 

had expressed an opinion on a subject. Academics were excluded if 

they were funded by an agency, but employees of regulated industries weren’t. There was a provision that called for, kind of, equal 

and opposite biases—if a peer reviewer had an unavoidable bias to 

find another one who had a counteracting bias without any discussion of the relative qualifications of the two reviewers. And finally, 

there was a question of attributions, which violated the generally, 

although not entirely widespread, procedure of giving anonymity to 

peer reviewers in science. And there was this question that I menVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 01259 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230
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tioned of delay, the prospect of litigation dragging out proceedings, 

and other factors that I’ve already mentioned. 

I have to say that, as Don mentioned—and his predecessor, John 

Graham, actually was very open about this process at OMB—they 

read the comments that were received. And there were quite a few 

of them—almost 200, I think—and they listened to the science community. We met a couple of times with—together with the groups 

of other scientific society representatives, and they significantly improved these guidelines the second time around. The second draft 

was a much-improved version. It turned out to be relatively 

uncontroversial. It may have been a strategy in the first place. We 

don’t know. But in any case, it certainly worked out, I think, to the 

advantage of both OMB and the science community. 

The House Government Reform Subcommittee on Regulatory Affairs—as I said—held no hearings on the Data Quality Act prior to 

its passage. Five years after its passage, they held the first hearings to give an assessment—to ask agency representatives and 

public interests groups to give assessments of how they thought it 

was working. And of course, the predictable responses were given. 

The government agency said it was too early to give an accurate 

assessment. The public interest group said, well, they can’t really 

talk because they’re afraid they’re going to lose their jobs. And the 

industry said, well, the agencies aren’t really enforcing things 

strictly enough. So no surprises there. 

The major development that occurred took place just a monthand-a-half ago in late March. The Salt Institute and the Chamber 

of Commerce had sued the Department of Health and Human Services (HHS)—the National Heart, Lung, and Blood Institute—for refusing their petition to change data that they had released showing 

that sodium lowers blood pressure. They said that this data was 

faulty. HHS said, no, it’s not, and refused to do so. They took them 

to court, and the Fourth Circuit Court on March 21 agreed—saying 

that they don’t have jurisdiction, that there is no provision in the 

act for judicial review and therefore that suit did not have merit. 

Now, I suspect that there are people who are working on a legislative fix for that. It may be a little more difficult to do this time 

now that people are aware that this thing is going on. But we’ll 

have to stay tuned and see what happens. Maybe we can get into 

this in the discussion period. There is also another piece of legislation. There is a bill introduced by Representatives Henry Waxman 

and Bart Gordon, two Democrats who want to abolish the Peer Review Bulletin entirely. They have the Restore Scientific Integrity to 

Federal Research and Policymaking Act. It was introduced over a 

year ago, and it eliminates this Peer Review Bulletin. That’s my assessment of its chances of passage. That’s a snowball by the way 

in the—those of you who don’t recognize what it is. 

[Laughter.] 

Mr. TEICH. Anyway, I think I’ll quit while I’m ahead. This is the 

place where you can find information on our activities in this area. 

That’s my e-mail address in case you want to follow up anything, 

and that’s our new AAAS bumper sticker with baby Einstein. 

Thank you for your attention. 

[Applause.] 

Mr. COPELAND. Thank you, Al. 

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Our next speaker is Bill Kovacs. Bill is the vice president for Environment, Technology, and Regulatory Affairs at the U.S. Chamber of Commerce. The Chamber of Commerce is the world’s largest 

business federation, representing more than 3 million businesses— every size, sector, and region. Since assuming the position of vice 

president in March of 1998, Mr. Kovacs has, among other things, 

recruited and assembled the first science team to work in tandem 

with the policy staff to ensure that federal regulations are based 

on sound science. Mr. Kovacs is a frequent commentator on national, environmental, energy, and regulatory issues that impact 

the business community. He is regularly quoted in the nation’s 

leading newspapers and appears on talk shows and television as a 

spokesperson for American business. He is listed in—and I wish I 

had this resume—Who’s Who in the World, Who’s Who in America, 

Who’s Who in American Law, and Who’s Who in Emerging Leaders. Bill? 

BILL KOVACS. Well, thank you, Curtis. And it really is a pleasure 

to have this group assembled. And thanks to the Congressional Research Service because this really is an important talk and an important way of discussing an issue that really is a lot different. Let 

me just sort of respond, before I get into my remarks, to Al because 

everyone talks about, well, this thing was—Data Quality Act was 

slipped in in the middle of the night. Well, if you go back, there 

were five years of committee reports talking about having OMB be 

responsible for good quality data. And they used the same words—

objectivity, utility. And the Congress asked and asked and asked, 

and finally they just put it into a statute. Now, we’re going to have 

a question as to what the statute is worth, but we’ll get to that 

later. 

As you can tell from Al’s comments, you know, the Chamber has 

been a very strong proponent of data quality and frankly all of 

OMB’s guidance efforts. We really commend them because it was 

the first time, I think, in the history of the United States where 

we really tried to discuss science and how science is going to be 

part of the rulemaking process. And OMB systematically using the 

Data Quality Act went through and talked and required the agencies to do their own guidelines—start it on peer review, start it on 

good guidance, address cost-benefit. They did prompt letters if they 

thought the agencies’ regulations were insufficient, and now they’re 

on risk assessment. That is one amazing set of undertakings, and 

we really compliment them. Now, I’m going to get to the Salt litigation because at the end that puts everything that OMB does in 

question, but we’ll get to that. 

The Chamber’s position is really clear, and you need to know 

where I’m coming from because as we talk about suspicion, you 

know, we’re not dealing with Galileo here. We’re dealing with a 

modern rulemaking process. And our position is really clear. We 

believe that the best regulation is transparent regulation, that all 

the studies and the models need to be put out in the public. We 

have even petitioned OIRA to do an open peer review process, at 

least to try it, to take one of the regulations and find out how it 

works because you don’t have the four or five little anonymous people sitting in a hideaway making—trying to generate policy and 

manipulate numbers. You have put it out to the public to see what 

1262

all the scientists around the world might think of the issue. What’s 

wrong with opening it up? 

And the reason why the business community supports open and 

transparent regulation is because the community, of all of the people here, is the only one actually impacted. They pay $1.1 trillion 

a year to deal with regulations. And so the other thing is the business community is the only one here that is impacted. If they do 

something wrong, they can be sued by the agency. They can be 

brought before a court. They can have trial lawyers bring class actions against them. They are subject to huge civil and criminal penalties. This is a lot different than the European system where you 

have a group of really onerous regulations with literally no enforcement. So we’ve got to keep in mind that we’ve got a system that’s 

very flexible and really based very strongly on enforcement. 

The big thing is going over—and I think Al was right when he 

said the scientific community was very suspicious. They didn’t 

know where anyone was going because no one wanted to affect all 

of the federal contracts that they might have. And yet there’s a bill 

before the House which is to just identify who gets the money in 

a federal contract and the opposition to that. No one even wants 

to allow the American public to know who even gets the money. 

And yet the critics were saying, well, if you have—if the Data 

Quality Act passes, you’re going to be deluged with petitions. The 

business community like the U.S. Chamber—we’re going to use it 

to shut the system down. Well in 2003, there were 97 petitions. In 

2004, there were 57 petitions. There were 28 appeals. And that is 

so much different than Freedom of Information Act (FOIA) where 

there are tens of thousands of FOIA requests. And the reason why 

there were so few is the Data Quality Act requires an enormous 

burden. We have to first go do our own science. Then we have to 

present it to the agency in a petition for correction. That is not a 

simple task. 

But the U.S. Chamber did two petitions, and I just want to lay 

them out really quickly because I still think I have a few minutes. 

The first was the data inconsistency. And there what we had addressed to the Environmental Protection Agency (EPA) is we said, 

you have 16 databases—key databases—and within the databases 

you have chemicals which have been assigned—the same chemical 

has been assigned different values, some differing by as much as 

a billion. We think you have a problem. Well, this was two years 

ago. The only thing we asked the agency to do was to form an 

inter-agency working group to get it right. And it was very interesting; U.S. Geological Survey agreed with this. The Federal Swiss 

Environmental Research Institute agreed with this and said, look, 

these databases are used throughout the world. We’ve got to get it 

straight. There were even some environmental groups. The EPA 

two years later still refuses to deal with the issue. 

The Salt litigation—this is frankly an issue where I just got frustrated by everyone walking around—you know, the environmentalists and the scientific community saying, well, the Data Quality 

Act, there’s really no judicial enforceability. And our side wanted 

to live on the belief that we had judicial enforceability, and somehow, if we ever really wanted to make it work, we really could. 

Well, that’s bull. You know, we sat there, and we said, we’re going 

1263

to pick a case. And we picked the Salt case, and the reason we 

picked it is because it involved influential data that everyone understood. And we wanted to do reproducibility. The information 

was never put into the public domain. 

And what we did is we said, we want the data for reproducibility 

purposes. All we wanted—let’s be clear. We asked the agency for 

the data so we could reproduce the results. The agency denied it. 

We appealed. The agency denied. We then, after final agency action, went into the courts, and we lost. The courts said we have no 

standing. The court was very clear that no human being, no chamber of commerce, no business, no anyone has standing, that this is 

strictly an OMB situation. 

So what are we left with? Well, what we’re really left with is the 

Data Quality Act, for all intents and purposes, is a really nice academic exercise. But other than that, unless OMB wants to enforce 

it, there really is—there are no teeth to it. So in terms of forcing 

good quality data into the federal regulatory process, that does not 

exist. It does not exist. So what do we do? One is we could go back 

to the Congress—and certainly we are—to get judicial review provisions put into the law. We could get a more far-reaching executive 

order to require OMB and give them a little more of a policing authority over the regulations, but that can be abolished with the 

next administration. 

And so I guess what we’re really down to is we’ve got to decide 

as a nation whether or not science should be part of the rulemaking process and the best science, and that we use the best scientists and we’re inclusive not exclusive. Or we just have to say, 

look, the whole process was a farce, and we really don’t need whatever OIRA is doing other than data collection. And we need to 

move on, but we need to make a decision. It’s a huge public policy 

decision. Thank you very much. 

[Applause.] 

Mr. COPELAND. Thank you very much, Bill. The last presenter— and certainly not the least—Rena Steinzor—Rena is the Jacob A. 

France research professor at the University of Maryland School of 

Law and has a secondary appointment at the university’s medical 

school. She is a founder and member of the board of directors at 

the Center for Progressive Reform. Professor Steinzor teaches environmental law and two seminars on law and science, the first on 

risk assessment and the second on issues such as peer review, 

human testing, the precautionary principle, the relationship between science and economics, and the politicization of science. She 

is the editor with Professor Wendy Wagner of a book of essays entitled ‘‘Rescuing Science from Politics—Regulation and the Distortion 

of Scientific Research’’ to be published by Cambridge University 

Press at the end of June. 

Rena? 

RENA STEINZOR. And you can order the book on Amazon. 

[Laughter.] 

Ms. STEINZOR. I want to thank Curtis and Mort and American 

University. This is truly a rare opportunity for all the clashing 

sides to get together and have a good debate on this issue. I find 

these days that we do that less and less to the detriment of everyone, and I was struck when Bill was talking about how different 

1264

our worldviews have become. From his perspective, business is the 

only entity truly impacted by regulation as opposed to, from my 

perspective, all the kids who have asthma in the inner city and 

similar groups like that. And he also is very concerned about excessive enforcement when, from my perspective, there is barely a sign 

of life at most of the regulatory agencies. So it’s always useful for 

us to compare notes and get a little reality check from both ends 

of things. 

Now my kids are in high school and we always have rubrics that 

we work on as I play the homework police and they march around 

the house trying to evade my enforcement. And I thought I would 

adopt one today that was relatively simple and familiar: who, what, 

so what, when, where, and why. 

First, the question of who. OMB is portrayed by Don and Bill as 

an agency with an important role in overseeing science. And yet 

there are virtually no scientists—very few scientists on OMB’s 

staff. The staff is overwhelmingly dominated by budget analysts 

and economists. There probably are—and maybe Don can clarify 

this for us—more lawyers on the staff of OMB than scientists. So 

we do not need to resuscitate all the shopworn arguments about 

what the appropriate scope of OMB’s oversight over federal rulemaking—we don’t need to resuscitate all that debate to cringe at 

the prospect that economists and budget analysts would be pulling 

their chairs up to the table every time scientists and science policymakers throughout the government tried to perform risk assessment, which is not a pure science function to be sure, but is primarily involved with scientific evaluation. 

The what of this escapade—which is, I would suggest, one of the 

potentially most prominent legacies of John Graham’s tenure. By 

far, he was the most ambitious director of OIRA in its history, and 

this proposal could really dwarf every other thing that OMB has 

done in this area. What it is is a governmental effort, from my 

point of view, that would straightjacket health and safety risk assessment. Built on a single chemical specific model, it would apply 

to an industry-wide assessment of the threat posed by terrorist attacks on chemical plants or an assessment of what increased reliance on nuclear power would mean for public health and safety. 

So whatever its elements, this would be the first time that in 26 

pages we set forth rules for this wide variety of assessments. And 

it’s worth noting that the National Academy of Sciences, which has 

put out three, maybe four depending on how you count them, reports on risk assessment, starting with the Red Book in 1983, has 

gone out of its way to emphasize that it is not possible to impose 

a one size fits all straightjacket on risk assessment, that there are 

some principles and some ideas that should be incorporated, but 

that setting a basic rule for risk assessments is really not scientifically sound. 

Ironically though—and this is worth pointing out—the Risk Assessment Bulletin does not apply to registrations of pesticides, individual nuclear plant facility licensing proceedings, or testing done 

for the purpose of approving new drugs. It’s worth noting that all 

of those risk assessments are done primarily by industry-regulated 

industry, and the double standard is certainly curious. Maybe Don 

can enlighten us on why that choice was made. 

1265

Now, we’ve talked a lot about the Information Quality Act. I do 

want to remind us of its history. We are lucky to have Jim here 

because he was there first. The Information Quality Act was born 

out of the tobacco industry’s frustration with the passive smoking 

study that EPA had done. And the tobacco industry is a model for 

what Professor Tom McGarity calls the corpuscularization of 

science; that is, looking at each piece of scientific evidence very 

critically, deconstructing every study, questioning each individual 

piece as opposed to viewing all the scientific evidence together and 

making a scientific judgment on what the weight of the evidence 

tells us. 

The Information Quality Act is the way that people seek to isolate pieces of scientific evidence. And although it has fallen on hard 

times, to be sure as Bill mentioned, we have little doubt that we’ll 

be revisiting this issue on Capitol Hill, probably not in the middle 

of the night as an appropriations rider, no matter how good the reporting was by various isolated committees, instead in the context 

of a full-fledged debate, which will, among other things, have to 

consider what will happen to the 800-odd federal judges who are 

already overwhelmed by their criminal docket if the gates are 

opened and any industry aggrieved by any single piece of government information can go to the courts and challenge it under the 

peer review guidance or under the risk assessment guidance should 

it become final. 

So it’s certainly true, to sum up the what and the ‘‘so what,’’ that 

the Data Quality Act or the Information Quality Act, the 

corpuscularization of science will occur with or without it. But 

should judicial review be granted and even if it is not, the hooks 

that are provided in the proposed Risk Assessment Bulletin for 

corpuscularizing and challenging science will enrich these debates 

and make them proliferate greatly. And I take little comfort—

again, this is a reality check—with the argument that so far we 

haven’t had too many of these things. It’s true that there haven’t 

been that many. Some of them have been very, very significant, for 

example, the challenge that some people here were involved with 

to the SIPs for the northeastern states—the State Implementation 

Plans—because they included state rules on controlling paint. That 

one never officially turned into any challenge to the states, but behind the scenes there is good evidence that the states were subject 

to another round of browbeating about how they should really have 

a conversation with the paint industry and try and straighten out 

their differences. And the ozone attainment in the northeast is not 

a small matter. And that was just one Information Quality Act request. 

The two key problems with the risk assessments guidelines, 

again, the one size fits all. The best explanation of that is that the 

guidance says that whenever possible, central risk shall be estimated. If you have a single chemical—take perchlorate, mercury, 

atrazene, arsenic—and you have the National Academy of Science’s 

panel—multidisciplinary panel, which will now include presumably 

observers from OMB at least watching it, much less supervising 

how agencies use those reports—what you would see is an effort to 

take all the models—all the pieces of information—and somehow 

1266

come up with a weighted average, some kind of mathematical calculation that will express central risk. 

And as difficult as it is for anyone who has been involved in one 

of these things to get their minds around how we would do this for 

a single chemical, shift the focus to the other extreme where we’re 

trying to do an industry-wide assessment of the nuclear industry 

or an industry-wide assessment of chemical plants. And imagine 

how all the inputs, all the models, all the individual studies, the 

outcomes, which may or may not be in numerical terms, will be 

combined into a central risk estimate—not a range, although the 

bulletin does require the presentation of ranges. But it is absolutely emphatic on the development of a central estimate, and it 

just makes very little sense from a scientific perspective, I would 

submit. And I would be very interested to see what the scientist 

on the panel—what Al thinks of that. 

Finally, the second problem with the bulletin is its conflation of 

assessment and management. In order to comply with the bulletin, 

agencies must flash forward to the end of the rulemaking and develop an assessment of all the risk reduction measures that might 

be available and what the cost—what the implications are of those 

risk reduction measures. And they must then compare it to a baseline risk. Now, I’m not going to sit up here in front of you and be 

naı ́ve and silly enough to suggest to you that, again, risk assessment is a matter of pure science. Obviously science policy judgments come heavily into play. 

But what that requirement would essentially mean, as the academy was told by Colonel Dan Rogers, the point person on perchlorate for the Department of Defense, that before the academy 

could finish its perchlorate risk assessment, it would have to consider the impact on training and the national security. Rogers told 

them that there is no room for reliance on science policy precaution. For its own sake, every layer of science policy precaution 

inhibits our ability to train, putting our combat forces and ultimately our nation at risk. This is a very heavy burden for a group 

of scientists who are not trying to make the ultimate decision about 

what to do about a risk but are merely trying to come up with 

some kind of qualitative assessment of it so that that assessment 

can be handed to the decision makers who make the final calls. 

Now, I still have when, where, and how, so let’s make short 

shrift of those. Not much has been happening in the rulemaking 

or standard setting word. All of this is about what will happen in 

the future, and we all have different ideas about how close that future might be. Watching the Hill would be a very important point. 

There was a letter yesterday that was sent by Congressmen Dingle, 

Waxman, Oberstar, and Gordon to the academy, asking them how 

they plan to carry out their charge on the bulletin and expressing 

concerns about it. Also we can expect to see a bill up on the Hill, 

as he has told us, trying to make sure that the Information Quality 

Act is judicially reviewable. 

There is tremendous pressure in this election year both not to do 

anything and to institutionalize all of these tools for making sure 

that the future does not get out of control if and when power shifts 

in Washington. ‘‘How’’ would clearly depend on what the Academy 

says about the bulletin, what the Congress says—and there will be 

1267

probably many committees involved, especially the judiciary committees—and ultimately what OMB does in its effort to modify it 

in response to public comments and the energy it is willing to put 

into enforcing it. 

So, how did I do on time? 

Mr. COPELAND. Perfect. 

Ms. STEINZOR. Okay. 

UNKNOWN SPEAKER. I thought you were doing a filibuster. 

Ms. STEINZOR. You did? Where is my phonebook? 

[Applause.] 

Mr. COPELAND. Thank you all very much for your presentations. 

We certainly have a range of opinions here and certainly plenty of 

grist for questions and answers. Laura has agreed to be the walk 

around person with the mike for this session—I’m going to do it 

later—so I would ask three things. One is wait for the mike if you 

have a question so that the transcription service can capture your 

question on the tapes. Secondly, identify yourself and, if you want 

to, your affiliation. And then finally, state to whom you would like 

to address the questions, whether it’s to all the panel members or 

a particular one. There should be plenty of things here. If the discussion lags, I have my own questions, but I will hold those off. If 

any of the panel members have a question, they can let me know 

that they would like to pose to another—their fellow panel members. I’ll throw it out to this point. Yes, right here. 

Question: My name is David Frost. I work for the general counsel’s office at the Department of Homeland Security. My question 

is, well, for anyone, I suppose. It’s on the copuscularization of 

science. And I should say my science background is almost nil. I 

was really so traumatized by grade school math that I became a 

lawyer in a fit of despair. But I’m just wondering—this idea that 

you could challenge a piece of a scientific study or an aspect of the 

research—you suggest that, Ms. Steinzor, as if that were a bad 

thing. And yet it seems to me that if a piece of the research on 

which someone has proposed a policy is shown to be defective, then 

presumably everything that’s built on it would also be. So is it really such a bad thing? 

[Cross talk.] 

Ms. STEINZOR. Well, in another shameless pitch for our book, let 

me just say that Professor McGarity, who has also written an article about it—and I can give you the citation for it—explains why 

corpuscularization is so damaging. But let me try quickly to compare it to the way scientists usually make decisions, which is on 

the basis on the weight of the evidence. Like every human endeavor, there is no individual piece of science that is free from flaws. 

Even a simple rat bioassay in a lab—there can be decisions made 

about the doses given to the rats, how often they are fed, whether 

they have genetic weaknesses. And that’s a simple example. 

There is also—a more complex example would be an epidemiological study where the population is selected in a certain way, where 

we have questions about what the level of exposure was, where we 

question whether we followed the illness for long enough. And all 

of those individual flaws—generally what scientists do is study the 

evidence very carefully, take it as a body—that’s what meant by 

the weight of the evidence—and make a judgment about how to offVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 01267 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230
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set one study against another and how to take into consideration 

the flaws of the studies. 

To take each study individually and say, it has a flaw and we 

are going to make a court case out of it—almost literally—and 

knock it off the table, ends up in the end meaning that you have 

nothing left to make a decision on, even in the best of all possible 

worlds, even with the best of all possible science. Tom, is that fair? 

He’s speaking today so he’s -

Mr. KOVACS. Let me see if I could also respond. I think your 

question really hit the nail on the head. But before I address that, 

first I want to say, you know, Rena, when you work for the U.S. 

Chamber and you promote the free enterprise system, there’s not 

such thing as a shameless pitch. So go for it. 

[Laughter.] 

Ms. STEINZOR. You’re going for it now? 

Mr. KOVACS. Oh, we’ll always buy your book and read it. Are you 

kidding me? Absolutely, you got one copy sold. 

Ms. STEINZOR. Oh, good. You can get more than one copy maybe. 

[Laughter.] 

Mr. KOVACS. And we might, but we believe in reading all opinions, not just one set of them. 

Ms. STEINZOR. I’m an avid fan of your reports. 

Mr. KOVACS. Oh good, thank you. We agree on something. 

[Laughter.] 

Mr. KOVACS. You know, we actually thought about your question 

as we were filing our petitions, and it was really something that 

goes to the heart and soul of the act. And I think we came to several conclusions. One is there may be pieces of evidence or of information, or there may be assumptions that are so influential, and 

that’s the whole purpose of qualifying some information as influential—that it really needs to be challenged. 

But when you go to put one of these data quality petitions together, whether it be the 16 databases or the salt, it takes an enormous amount—I mean, we spent seven months between my inhouse scientist plus the outside scientist at Cambridge Environmental to put this together and to look at the database. We literally had to go and find every single chemical that EPA regulated 

and then do a printout so that we could see on the 16 databases 

where the differences were. And the fact that all of that information had to be done first before we could even get there—but some 

of the things that came up—and then in the Salt litigation, there 

was an example where the data was really troubling. And all we 

wanted to do was get the data so that we could—so that we could 

run an analysis to see if we can come close to, you know, getting 

the same results. 

But what was so interesting is, when EPA finally, you know, denied our claim and then we appealed, some of the things that EPA 

said—and I think you really need to understand how valuable EPA 

sees these databases. They have a disclaimer on databases, which 

makes you see the disclaimers actually look funny. The software 

and the accompanying files are provided as is and without warranties, whether expressed or implied. The user assumes the entire 

risk of using this program. Yet these programs are pushed on to 

the public through many regulatory programs. On another inVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 01268 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230
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stance, they said, well, we no longer own the database anymore. 

We’ve given them back to Syracuse Research so, you know, they’re 

really responsible. And in some instances where they said there 

was complete and total peer review, we actually went back and 

found that there was no peer review. And in some instances we 

asked, well, let’s take specific data—just as you were talking 

about—and actually go back to the original studies and see if the 

data that was collected in the original studies is the same entered 

into the database. And in many instances, that data was wrong. 

So when you sit here and you see all of that, we’re not really 

sure what the process is at the Chamber. We only have the resources to take on the big issues, where it’s influential—salt or the 

databases. But there are instances where the data may be so important or the assumption may be so important that it really—you 

have to take it apart in order to understand the situation. 

Mr. COPELAND. Lisa? 

Question: Yeah, I have a question for Don. I just wanted to pick 

up on Rena’s point about the risk assessment guidelines not being 

applicable to pesticides registration, nuclear licensing, and Food 

and Drug Administration (FDA) approvals. And a person who is 

cynical might look at those categories and think, those are actually 

categories in which industry would want a prompt risk assessment, 

not to be weighed down with risk assessment guidelines, because 

those are cases where the statutory scheme makes a risk assessment necessary before business can get under way. And so I’m just 

curious—I know there must be more to it than that. So I’m just curious why those things were exempted from the risk assessment 

guidelines. 

Mr. ARBUCKLE. The intention behind that provision had nothing 

to do with the concern that Rena expressed. In the executive 

order—Executive Order 12866, I believe, in I.Q. and in the risk assessment, OMB generally tries to stay away from particular adjudications, from licensing, from cases where there is not, as our favorite Administrative Procedure Act (APA) expresses it, cases of 

general applicability and future effect. It’s general applicability, the 

regulating as a general—provisions that affect more than one individual, one person, one company, one chemical, where the specifics 

of that individual case are what would guide the decision, not a 

broader policymaking provision. So that’s why that provision is 

common to a number of other documents. 

Question: [Off mike.] 

Mr. ARBUCKLE. There’s many other aspects of the government 

that also you could say that about, just about everything we do. It’s 

still an individual adjudication, an individual decision, and we try 

to stay away from those. 

Ms. STEINZOR. But, Don, that would mean, just to clarify, Vioxx 

and DDT, right? 

Mr. ARBUCKLE. If it’s an individual licensing or decision-making. 

Mr. COPELAND. Okay, thanks. 

Identify yourself. 

Question: Yes, I’m Don Elliot from Willkie, Farr & Gallagher, 

and I also teach at Yale and Georgetown. While we’re in the 

shameless self-promotion department, I was glad that my friend 

Rita Steinzor identified by case for the—under the Data Quality 

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Act for the paint manufacturers as the most successful or, in her 

view, nefarious use of the Data Quality Act so far on behalf of industry. Let me tell you just a little bit about the underlying facts 

and then ask you why you would regard that as a negative episode, 

rather than a positive one. 

Assume with me hypothetically—which I believe to be the case 

and was the basis for the Data Quality Act petition—that the regulation of ozone in the northeastern states was base on a single scientific study and that it could be demonstrated that some of the 

data in the scientific study had been misread. In other words, in 

some instances where there were certain levels, they actually reduced—they actually resulted in lower ozone levels so that the 

study had been completely misinterpreted in the regulations. 

The issue was raised in notice and comment rulemaking and was 

given short shrift. It was raised in multiple court cases, and it was 

given short shrift—just dismissed. It was raised under the Data 

Quality Act, and, at least by your hypothesis, that resulted in 

bringing the states and the industry to the table to work out a negotiated solution. From my standpoint, that’s a great success story. 

That illustrates, I think, how the Data Quality Act fulfills a need 

that is not being adequately addressed by the notice and comment 

process, not being adequately addressed by judicial review. So it 

seems to me that rather than being some nefarious episode in 

which the states are sort of overridden, it results in getting industry and the regulators together to discuss correcting a scientific 

error. 

Ms. STEINZOR. Again, it’s different views of reality. The piece of 

information that was at issue was not a scientific study on health 

effects, as your petition indicated. It was a calculation done on how 

much certain reductions in the composition of paint would reduce 

the OCs. If you decreased certain solvents, would you decrease the 

OC off gassing? 

I’ve spent many hours looking into the genesis of this, and I’m 

told by state regulators that their problem was that they could not 

get adequate information from the paint industry to make calculations that the industry would be satisfied with and that this piece 

of data on how much reductions you would accomplish was something that they used in their rulemakings. There were numerous 

opportunities—this is New York, Pennsylvania, Delaware, Maryland, New Jersey—numerous opportunities for the paint industry 

to introduce different data about reductions. Never happened. The 

single piece of information was in the state rulemaking docket. The 

states issued their rules. The rules were challenged in court. Some 

of the challenges were—they were very thorough. One of them was 

that, because there was an exemption for small manufacturers, the 

state rules violated the large manufacturers’ right to equal protection, as just one example. That was in New York. 

All of the rules were upheld, and then the paint manufacturers 

petitioned EPA to reject the SIPs because there was a piece of data 

in the underlying state rulemaking dockets that they didn’t like. 

And that is taking the Data Quality Act to great extremes since it 

says nothing about state rulemakings. And the idea that EPA has 

the resources to go read state rulemaking dockets is pretty fanciful. 

1271

In any case, as I understand it, the states rejected Jeff Homestead through the regional office’s request that they sit down with 

the paint manufacturers again. They’ve all gone through with their 

rules. I was talking to the guy in Maryland, I think, about a month 

ago, and it’s my understanding that New York has done the same. 

So I’m sure you have another side of the story yet again, but that 

was an example of a long, intractable dispute that almost had yet 

another chapter but didn’t because the states were frustrated. 

Mr. COPELAND. Thanks. 

Question: Yes. My question is for Bill Kovacs. 

Mr. COPELAND. Identify yourself. 

Mr. PASCUAL PASKY. I work with U.S. EPA, and I work with a 

lot of models. And I suspect that you and I probably agree quite 

a bit about the need for transparency, and where I think you and 

I might differ would be with the implication that perhaps transparency leads to the single verifiable truth. As I’m sure you know, 

one of the first instances where the Data Quality Act was used was 

against EPA to take down one of its climate change models because 

of the work that Patrick Michaels at the University of Virginia had 

done contradicting some of the results of the model. 

Now, would not greater transparency be accomplished if the 

model were allowed to stay and allow Patrick Michaels or whoever 

else present an alternative hypothesis—an alternative model, put 

that up on the web, and then let the discussion proceed—competing 

models as opposed to thinking that there is a single hypothesis 

that transparency leads to, to the exclusion of all other alternatives? Would that not be a better example of transparency. 

Mr. KOVACS. Well, first of all, I’m really thrilled that you asked 

that question because that really is a really significant point. First 

of all, you should know that we were the ones who urged literally 

from the beginning CEI to abandon the lawsuit. We thought it was 

one that you shouldn’t—that there was four or five, $6 billion 

worth of data that was collected in climate change, and we didn’t 

really see how a Data Quality Act—that really would be parsing 

the pieces, and we thought that it should stay, not only that it 

should stay, that it should be subject to open review. So we probably agree with you on that. It should have stayed up. You should 

have opened it up to peer review, and we should have brought in 

everyone. And eventually, I think, two gentlemen from—from Australia or Canada—McIntyre (phonetic)—McIntyre, and there was 

one other one, who actually did go and look at Mann’s (phonetic) 

work and did do an open review on the web. And it was really pretty fascinating. 

But we would agree with you. Yeah, it should have stayed. We 

had that position all along, and we publicly urged CEI to abandon 

the suit. 

Mr. ARBUCKLE. Curtis, can I make a comment? 

Mr. COPELAND. Sure. 

Mr. ARBUCKLE. The Information Quality Act has been soundly 

trounced here by Bill for one set of reasons and by Rena for another. Let me just give you the point of view basically for the career part of OIRA. We think that it’s working quite well. That is, 

it doesn’t give people an easy avenue to criticize government work, 

but it does give them an avenue with an appeal process. It was—

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the Act was or our guidance on the Act—set it up very much—very 

much on purpose with a burden of proof on the petitioner so that 

the argument that could be had was based on information—that is, 

information and data—not on arguments about policy decisions. 

We did not want it to become another avenue for having policy 

debates that may have already been decided. So there is a hefty 

data burden of proof on the petitioner. And then to pick up, the Act 

established guidance, not rules, and asked OMB to issue guidance 

and the agency to issue guidance, so it is more of an internal government quality control exercise than a regulation or a law that is 

challengeable through the judicial branch. We think that’s the way 

it was set up on purpose. 

Mr. COPELAND. So OMB would not support judicial review for the 

Information Quality Act? 

Mr. ARBUCKLE. Nice try, Curtis. 

[Laughter.] 

Mr. COPELAND. I thought it was worth a shot. In the back. Oh, 

I’m sorry. 

[Cross talk.] 

Question: Kevin Bromberg, U.S. Small Business Administration, 

Office of Advocacy. This is a question for—for Al. 

[Cross talk.] 

Question: Is this better? 

UNKNOWN SPEAKER. That’s better. 

Question: Kevin Bromberg, Small Business Administration—

sorry, Office of Advocacy. This is for Al. The scientist question, you 

know, what’s the need for additional peer review? You know, 

what’s the problem? As someone who has spent over 25 years working on—I have the honor of reviewing EPA rules, but we can say 

this about other federal agencies. There is and was a great need 

for peer review of scientific materials coming out of, in my case, 

EPA. I can cite many war stories. And one real quick one is relatively current. 

The Toxic Release Inventory lead rule, almost notorious, that 

came out in 2001 after a great controversy—there was a number 

of people who asked for peer review of that rule before it came out. 

We were among them, a lot of people from Congress, a lot of trade 

associates. The EPA said no. And the peer review that we’ve now 

obtained by the Science Advisory Board (SAB) after the fact, low 

and behold, said that the scientific basis for the lead rule, you 

know, was not correct. We were not surprised by that outcome. 

There are many examples I found in my history. You know, they 

are not published in The Washington Post. You don’t read about 

this, and that’s part of the problem. But from people who are inside, you know, playing inside baseball—inside OIRA, inside the 

federal agencies—it was clear to me that having the peer review 

in advance would have had a different result on that rule. 

Mr. TEICH. Was there a question in there? 

Question: The question is, are you not—are you aware of the fact 

that there is a need for peer review at federal agencies. You suggested that you didn’t think so. 

[Cross talk.] 

Mr. COPELAND. In back. 

1273

Question: Pat Casano, General Electric, Corporate Environmental Programs. I have a comment and then a question. I would 

encourage people to read the Fourth Circuit’s opinion in the Salt 

case because in my view it doesn’t definitively answer the question 

of whether judicial review is available. The key question in the case 

really was whether the agency’s denial of the request for correction 

under the IQA was final agency action under the Administrative 

Procedure Act. And the Fourth Circuit didn’t address that question. 

That is—that’s the same problem with the earlier decision—I forget 

from which district court—that basically said in less than a page 

that judicial review is not available under the IQA. So people can 

certainly, you know, read the Fourth Circuit opinion and make 

their own judgments, but I really think it fails to address the key 

question and therefore doesn’t definitively resolve that issue. 

The question/comment is I think the discussion this morning 

points out why there is a need for the Risk Assessment Bulletin, 

which to me goes to the objectivity prong of the information quality 

guidelines. The science that the agencies do is very hard. It’s not 

sticking a celery stalk in a glass of water with some food coloring 

in it and waiting to see if the celery turns blue. It’s very difficult. 

There are lots of opportunities for mistakes. There are lots of opportunities where assumptions and defaults come into play. And so 

it’s critical that it be an objective process, and everybody has a 

bias. Everybody has a perspective. 

I think that the bulletin gets to that, in part at least, by the requirement for weight of the evidence. But one of the problems with 

that is that, as I understand it, there’s no standard definition for 

what weight of evidence means or how you demonstrate that you’ve 

done a weight of evidence assessment. I was at an SAB ecorisk 

workshop recently and Glenn Suter from EPA said there are at 

least four different definitions of weight of the evidence. So I was 

pleased to hear Ms. Steinzor refer to that as what scientists generally do, but I’m curious as to whether there is a standard definition and what it is. 

Mr. COPELAND. Is there a standard definition of weight of the 

evidence? 

Mr. TEICH. Is there a standard definition of the weight of the evidence. I think it’s—a little, you know, is what they say about pornography. You know it when you see it. It’s difficult to define, but 

you know it when you see it. We have in sort of a common everyday culture a sense that there are always two sides to an argument. In science, there may well be two sides to an argument, but 

they don’t necessarily carry the same weight, and they don’t necessarily deserve the same degree of respect. 

Scientists try to keep an open mind. Nothing is ever really final 

beyond being open to question. Science progresses by challenging 

existing findings and existing hypotheses and theories, but there 

are some things that would appear to be sufficiently well established they’re not easily challenged. And those are the things that 

are supported by what we would call the weight of the evidence. 

It’s an accumulation of studies over a period of time that’s accepted 

by a large majority of the relevant scientific community. That’s 

kind of the best I can do on that. 

Mr. COPELAND. Okay, one last question. 

1274

Question: Thank you. Mark Powell with the Department of Agriculture. I have a question for Mr. Arbuckle. Thanks. The scope of 

the risk—proposed Risk Assessment Bulletin defines risk assessment strictly in terms of human health, safety, and the environment. Are there administrative reasons or legal reasons for defining the scope of the Risk Assessment Bulletin to that? There are, 

for example, federal insurance programs. There are influential assessments on risks to the built environment that aren’t related directly to human health, safety, the environment, for example, the 

electricity grid—those sorts of things. Would those fall under the 

purview of other circulars or OMB administrative guidance? 

Mr. ARBUCKLE. [Off mike.] 

Mr. COPELAND. Why is the scope of the Risk Assessment Bulletin 

limited to health, safety, and environment? 

Mr. ARBUCKLE. The answer to that is that, as you point out, 

there are very different types of risk assessment that exist across 

the spectrum of human study—insurance industry, financial institutions, and so on. And we felt that they were different enough 

than risk assessments in general that apply to health, safety, and 

environmental regulation that it would be not possible or particularly useful to try to incorporate all of these together. Now, one of 

Rena’s point was the argument that we have straightjacketed, one 

size fits all guidelines within this area, and that is certainly not 

our intent. And we would expect the NAS to tell us so if they 

thought that was the case. But the idea is to try to provide a general set of best practice guidelines that can be used with the appropriate flexibility across this important spectrum of federal programs. 

Ms. STEINZOR. Can I just add very, very -

Mr. ARBUCKLE. Also since we now have Bill and Rena after us, 

we didn’t want to have the entire insurance industry and all the 

engineers of the world against us too. 

Ms. STEINZOR. If the federal government is a family, then my answer to your question would be EPA is the bad child, and OMB is 

quite preoccupied with its activities and has been for many years. 

So that’s—you’d agree to some of that, right? 

Mr. ARBUCKLE. It’s our favorite child. 

[Laughter.] 

Mr. ARBUCKLE. Tough love. 

Ms. STEINZOR. I think it would like a little less attention. 

Mr. COPELAND. We do have—we’re trying to stay to—close to a 

schedule. If you have a question, you can pose it to them. These 

folks will be around, or some of them will be around for the day. 

Last thing—we’ll take a 10-minute break. We’ll be back at 10:45. 

Please thank this panel. 

[Applause.]

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TUESDAY, MAY 9, 2006

10:45–12:05 p.m.—Panel 2: 

‘‘SCIENCE AND THE JUDICIAL REVIEW OF RULEMAKING’’

Moderator: 

Jeffrey Lubbers, Washington College of Law, American University

Panelists: 

Tom McGarity, Professor, University of Texas School of Law 

Sid Shapiro, Professor, Wake Forest University School of Law 

Peter Strauss, Professor, Columbia University School of Law 

E. Donald Elliott, Partner, Willkie Farr & Gallagher, LLP

JEFFREY LUBBERS. We would like to get started. Good morning. 

Can we resume please? Thank you. I’m Jeffrey Lubbers. I teach administrative law down the road a piece at Washington College of 

Law, American University, and I’m privileged to be the moderator 

of this next panel. 

We have an extremely distinguished panel of lawyers and teachers, all of whom have been teaching administrative law and regulatory courses for many years. And I’d also like to say, for the benefit of our congressional sponsors, that all of them have served as 

research consultants, and in some cases as members, of the Administrative Conference of the United States, which as most of you 

know has been reauthorized but is awaiting appropriations of a 

mere $3 million to start up again. So that’s one earmark I’m in 

favor of. 

[Laughter.] 

Mr. LUBBERS. Our second panel is on the subject of science of judicial review of rulemaking. Now, of course, judicial review is a key 

aspect of our federal regulatory process. Unlike in most countries 

around the world, in the United States, most significant agency 

rules are judicially reviewable upon their issuance, even before 

they are enforced. And the key issues in some cases are three: first, 

whether the rule was issued according to proper procedure; second, 

whether the rule is within the statutory authority of the agency, 

which gives rise to the Chevron question; and third, and perhaps 

most relevant to today’s session, whether the rule is, quote, ‘‘arbitrary or capricious’’—the term used in the APA in its policy choice 

or in its reliance on the factual record, including of course scientific 

facts. 

So one key question has arisen in the courts, which is how the 

arbitrary and capricious test fits with scientific facts. Should it be 

the hard-look test that was used in the State Farm case by the Supreme Court or the soft-look test in other cases used by the courts, 

where the agency is said to be regulating at the front tiers of scientific knowledge? Might we need a Daubert-like test for scientific 

questions in judicial review, similar in tests used and announced 

by the Supreme Court, be used for admitting scientific evidence in 

private litigation. 

The second major issue in judiciary review of rulemaking is 

whether the various special statutes—the statutory requirements 

in rulemaking that bear on scientific questions—should be judiVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 01275 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230
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cially reviewable; for example, the Regulatory Flexibility Act, which 

required special evaluation and assessment of impacts on small 

business, is judicially reviewable. It was added about 15 years after 

the original act in 1995. But as we’ve heard, the Information Quality Act has been held not to give rise to special avenues of judiciary 

review and the same is true as to the Paperwork Reduction Act. 

So we’re going to hear about all these issues today. 

Our order this morning will be, first, Professor Strauss, then Professor Shapiro, and then Professor McGarity, and then Professor 

Elliott. Because they are all professors, I could not limit them to 

10 minutes; I’ve giving them all 14. 

[Laughter.] 

Mr. LUBBERS. I’m going to introduce them individually, if not 

corpuscularly——

[Laughter.] 

Mr. LUBBERS. —before they speak. So let me first begin with 

Peter Strauss. 

Peter is the Betts Professor of Law at Columbia Law School, 

where he has taught administrative law and other courses since 

1971. He also served as the general counsel for the Nuclear Regulatory Commission from 1975-77, where he helped the agency win 

the Vermont Yankee case at the Supreme Court—speaking of judicial review of rulemaking. He is certainly one of the most distinguished administrative law scholars in the United States, if not the 

world, with co-authorship of leading case books and treatises and 

influential articles that are too many to count. So today Peter is 

going to give us a short history lesson. 

PETER STRAUSS. Thank you, Jeff. Actually all four of us, I think, 

are former government agency servants in science-based agencies. 

And when I was general counsel to the Nuclear Regulatory Commission we actually, even back in the ’70s, did a lot about risk assessments. But the risk assessments that we were involved with 

were not only nuclear power and its risks but, at least on a comparative basis, the geopolitical risks of dependency on oil. I suggested to Don Arbuckle that the Department of Defense might be 

another good child for them to take good care of on the risk assessment front. 

Rulemaking—science rulemakings in particular—have a number 

of shared characteristics that makes the question of judicial involvement with them, seems to me, of some importance. They turn 

on trends, scientific facts, highly technical judgments, that aren’t 

just—as I think we heard from the previous panel—judgments that 

can be made objectively to a point, without a certain amount of 

judgment or guessing involved. They often have a strong political 

valence that can lead us to some suspicions about thumbs on the 

scale. Those of you who read the Washington Post this morning 

probably saw this wonderful line from Congressman Sherwood 

Boehlert, who is retiring. This is a town where everyone says 

they’re for science-based decision-making until the science leads to 

a politically inconvenient conclusion, and then they want to go to 

plan B. 

[Laughter.] 

Mr. STRAUSS. There’s a certain amount of documented OIRA 

pressure, although I’d expect Don to worry about that. We’ve seen 

1277

a lot of reports about presidential suppression of unwelcome 

science, especially on the question of global warming. We know 

that there is a good deal of legislative pressure and guidance as 

well. One of the things about rulemaking is that there’s a declared 

record of the rulemaking, which might or might not be complete, 

and an agency explanation in its terms and that’s the context in 

which judicial review takes place. One of my suggestions this 

morning is that judicial review might be, although it won’t inevitably be, a source of a certain amount of back pressure against the 

politics. 

Years ago a fellow I admire a great deal, William Peterson—I’m 

sorry, there are a lot of words, many more words, but I’ll leave 

them up for a while, than you’re supposed to use in PowerPoint— William Peterson uttered these comments about what he thought 

was the effect in EPA of extensive judicial review of rulemaking— basically that it kept the system honest, that it served as precedent 

for future rule-writers and gave those who care about well-documented and well-reasoned decision-making a lever with which to 

move those who do not. 

So, continuing on down, there’s a problem for judges, who, like 

Don Arbuckle’s staff by and large, are not scientists, are not 

science trained and don’t have much, if anything, in the way of 

science assistance. Can they go beyond the science explanations 

without permitting secondary and essentially adventitious disputes 

from both sides? But they are responsible to hold the agencies to 

the explanations they give and insist that they provide agencies 

centered reasoning. 

And a final line on this slide—years ago, before Vermont Yankee, 

Professor Richard Stewart, then of Harvard, now of NYU—wrote 

about what he called the paper hearing—the tertium quid, as he 

called it. And it’s not hard to see that what the paper hearing does 

is in some respects to reproduce in the judicial context the essential 

contesting feature of scientific inquiry rather than replicate trial. 

Who would want science issues to be decided by a jury or to be decided by non-scientists, rather than replicate trial? What it does is 

to replicate, in effect, the process of peer-review; that is to say, the 

exposure of evidence to the public for comment and then the coming to a conclusion in an explained way, which is what the courts 

reviewed, on the basis of the data received. 

Now, there’s a problem about this which is connecting this to the 

text of the Administrative Procedure Act, which in general is the 

statute that governs rulemaking. And the requirements of the Administrative Procedure Act are extremely simple. General notice—

and if you read that language you’ll see that the notice doesn’t say 

anything about data, the inclusion of data. And then an opportunity to comment—and if you read that language particularly 

through the eyes of someone who might have enacted this statute 

in 1946—we’re coming up on its 60th anniversary this June—I 

think you’ll see that the opportunity they are imagining is the kind 

of opportunity that you have when you go before Congress to deliver a witness statement. You don’t have the opportunity—and it 

doesn’t say anything about your opportunity to see everything that 

the congressional committee knows; it’s just your opportunity, yourself, to provide them with data such as you might. 

1278

And then the next thing it says is simply after consideration of 

everything that’s presented, including what you yourself think you 

know, that you incorporate in the rules a concise, general statement of their basis and purpose. I like to define concise and general—concise: expressed in few words, brief and comprehensive in 

statement, not diffuse; general, again, as distinct from specific details. Concise-general has an ordinary meaning in the English language and I think we all know enough about rulemaking to know 

how far we have gotten from that. 

The D.C. Circuit, just a month ago, captured these conclusions. 

This is not a science case; it’s Bill Kovacs’ organization, again, the 

Chamber of Commerce, but in this instance suing the SEC, but 

suing the SEC on exactly the grounds that concern us here today: 

the failure to make public the information on which it was relying 

in a form that would permit outsiders in the comment process to 

respond and comment. And the Court of Appeals agreed enthusiastically and emphatically, saying that the APA provides a procedural device to ensure that agency regulations are tested through 

exposure to public comment, and that means exposure of your data. 

How did we get there? The language of the APA, again, I will 

suggest to you, just doesn’t say anything of the sort. For myself, I 

think the answer to that question came through the development 

of the Freedom of Information Act in the early 1970s. Once the 

Freedom of Information Act was in place, it became virtually malpractice not to file a Freedom of Information Act request for all 

data that the agency knew of involved in the rulemaking. Even if 

this wasn’t directly connected to the rulemaking, it reflected a congressional policy on which courts could build and courts did build. 

There was a vigorous debate in the D.C. Circuit in the wake of 

the Freedom of Information Act between Judge Leventhal and 

Chief Judge Bazelon. Chief Judge Bazelon, for whom I clerk—you 

might recognize as the author of the D.C. Circuit’s opinion in 

Vermont Yankee that you’ve heard about. Terms of that debate 

were captured in a case called Ethyl Corporation v. EPA. 

Leventhal, tying this very much to the issue of delegation, says 

that the system of review assumes judges will acquire whatever 

technical knowledge is necessary as background for decision of the 

legal questions, and on the basis on that background, go forward 

to access the adequacy of the arbitrariness or capriciousness of the 

agencies’ results. Judge Bazelon completely distrusted the capacity 

of courts to reach those kinds of judgments. From his perspective, 

the only thing one could appropriately do was to impose procedures 

at the agency level that would assure a decision-making process 

leading to reasoned decisions that can be held up to the scrutiny 

of the scientific community and the public; a decision-making process at the agency level because he didn’t think courts could do it. 

That produced Vermont Yankee. And Judge Bazelon was told 

that he was wrong. Judge Leventhal was a Columbia alumnus. I 

used to see him in the halls of Columbia all the time afterwards, 

and he’d pat me on the shoulder and say what a wonderful thing 

it was that a Bazelon clerk had been responsible for his victory 

over Judge Bazelon in this particular dispute. 

[Laughter.] 

1279

Mr. STRAUSS. And I smiled. I think Judge Bazelon has ultimately 

prevailed—prevailed essentially through the back door, if I can call 

it that way, of the Information Quality Act, the OIRA Review, all 

the variety of ways in which the political branches have taken over 

the injection of additional procedures and additional challenges to 

science judgment at the agency level. 

One of Judge Leventhal’s other achievements as a judge—he was 

a wonderful judge of administrative law—was to establish just the 

principle that the Court of Appeals for the District of Columbia reiterated last month; that is to say, that the notice and comment 

process means you have to reveal your data. I want to say to you 

again, I don’t find that in the language of the APA as such. I think 

you can put it there if you put the APA together with the Freedom 

of Information Act. This is very clearly a rock-solid proposition of 

administrative law at this point, whether or not it is in the APA. 

And I’ll simply leave you with this context: There is, again, at 

least a chance that judicial review will stand in some way as back 

pressure to the influence of politics at the agency level, by, in Peterson’s terms again, giving those who care about well-documented 

and well-reasoned decision-making a lever with which to move 

those who do not. Thank you. 

[Applause.] 

Mr. LUBBERS. Thank you, Peter. In speaking of Judge Leventhal, 

you reminded me that Judge Leventhal once wrote an article in 

which he proposed that appellate judges, especially D.C. Circuit 

judges, should hire science-trained assistants in addition to hiring 

law clerks. And I remembered that my old administrative law professor, Kenneth Culp Davis, also suggested that the Supreme Court 

should have a research service, something like the CRS, to help 

them with scientific and technical questions. So maybe you’ll have 

a chance to comment on that afterwards. 

Our next speaker is Sid Shaprio, who holds a university distinguished chair in law at Wake Forest University. He’s a member 

scholar and board member at the Center for Progressive Regulation. His most recent book is, ‘‘Sophisticated Sabotage: The Intellectual Games Used to Subvert Responsible Regulation,’’ published by 

the Environmental Law Institute Press. He’s also the co-author of 

‘‘Risk Regulation at Risk: Restoring a Pragmatic Approach,’’ published by Stanford University Press; two law school textbooks on 

regulatory law and practice and administrative law, and an administrative law treatise. Sid has been a consultant to U.S. Department of Labor Occupational Safety and Health Administration 

(OSHA). He’s testified in Congress on regulatory policy and process 

issues. He also worked at the FDA in his early career. Today he’s 

going to talk about judicial review of the Information Quality Act. 

SID SHAPIRO. Thanks, Jeff. Well, I feel I should also have a 

Judge Leventhal story. He said many wise things about administrative law, but I think this is perhaps the most apt. At one point 

Judge Leventhal observed, ‘‘In administrative law, complexity has 

a bright future.’’ [Laughter.] 

Mr. SHAPIRO. I would like to talk about the Information Quality 

Act and whether or not there should be judicial review of it. It was 

pretty well described in the last panel, but basically, as we know, 

1280

it requires OMB to issue guidelines, the agencies to respond with 

guidelines, and to have a process to hear petitions for review. As 

you also heard in the last panel, the Fourth Circuit has ruled that 

there was no judicial review possible in the Salt Institute case, and 

as I will explain, they did so in a manner that suggests there can’t 

be judicial review of the act in any case. You’ve also heard the supporters are interested in a legislative override, and therefore I 

think it’s on the table to talk about whether or not that is a good 

idea. 

As you know, the Fourth Circuit decision came in the Salt case. 

The Salt case involved a study called Dash—The Dietary Approaches to Stop Hypertension study. And the study led to two 

publications, one in the New England Journal of Medicine and one 

in the Annals of Internal Medicine, two of the county’s leading 

medical journals. The findings were that all Americans could reduce blood pressure by lessening their sodium consumption. Then, 

as you also heard, the National Heart, Lung, and Blood Institute, 

which is part of National Institutes of Health (NIH), republished 

the findings of the studies in news releases, on their website and 

in at least one report. 

The Salt Institute then filed a IQA petition—and I want to spend 

a minute talking about the petition because I think what happened 

in the petition in the case got confused in the last panel. You heard 

Bill Kovacs in the last panel say that what the Chamber was interested in was getting access to the data that underlie the two studies that were published in these medical journals. And the original 

impetus of the petition was a demand for that data. Now, the studies were conducted prior to the Shelby Act, so although these were 

government contractors, there was no obligation under the Shelby 

Act to turn over the information. The response of the agency was, 

well, you can file a Freedom of Information Act requesting, but, by 

the way, we don’t have the data in our files so we’re not sure that 

would be a very fruitful process. At that point, the Chamber 

amended its petition to ask that the data be correct and sought 

that the website descriptions of the results of the study be modified 

and that they report that sodium intake only reduces blood pressure for some groups and some persons, not for all Americans. So 

it essentially disputed the results of the study. 

Now, the Information Quality Act does say as one of its conditions that information—scientific information—has to be reproducible. That’s a quality aspect of the act itself. I don’t know of anyone 

that has suggested, except perhaps Bill, that the Data Quality Act 

therefore establishes a legal right that people who petition the government can use the Data Quality Act as a kind of FOIA to get underlying data. I understood that all OMB meant was the study has 

to be done in a way that if someone had access to the underlying 

data, they could potentially reproduce the results or at least test 

them. 

Judge Luttig, writing for a panel of three in the Fourth Circuit, 

dismissed the appeal because, he said, the Salt Institute lacked 

standing. First he noted that the plaintiffs must have an injury in 

fact, and the injury alleged by the Salt Institute was the asserted 

incorrectness of the public statements made by the agency. Second, 

he noted the IQA, by its terms, creates no legal rights in anyone. 

1281

It merely orders OMB to write guidelines and indicates the subjects the guidelines should address. Judge Luttig therefore concluded, quote, ‘‘Because the statute upon which appellants rely 

does not create a legal right to correctness, appellants have not alleged an invasion of a legal right and thus have failed to establish 

an injury in facts sufficient to satisfy article three.’’ In other words, 

since the IQA does not create any legal rights in anyone, the Salt 

Institute cannot meet the redressability test of standing. Since the 

court lacked any authority to order the relief that Salt Institute 

was seeking, the lawsuit could not present a case in controversy. 

So that presents the issue, should Congress overrule the Salt Institute case and make the IQA judicially reviewable? The primary 

argument in favor of judicial review is that it would increase agency compliance with the IQA. Of course, if you don’t think the IQA 

is a good idea, and the think tank with which I’m affiliated does 

not, then judicial review only makes a bad situation worse. Putting 

aside that objection, however, one could respond to this argument 

by noting there is OMB enforcement of the IQA. Nevertheless, it 

has to be true that OMB can not be everywhere and that agencies 

are more likely to ignore their IQA duties if they are not subject 

to do judicial review. 

This is the same argument that has led Congress to make the 

environmental impact statements and regulatory flexibility analyses subject to judicial review. Nevertheless, as I will explain in a 

minute, these requirements do not necessarily furnish a precedent 

for judicial review of the IQA. Furthermore, judicial review would 

make the IQA into an undesirable Daubert process, ossify rulemaking and information disclosure, and create a substantial burden on the federal courts. As noted, there is judicial review of some 

regulatory impact analyses requirements, namely National Environmental Policy Act (NEPA) and RegFlex, although most are not 

subject to judicial review. 

But judicial review in this context is for procedural compliance. 

Did the agency undertake the type of analyses it’s supposed to undertake? Judges are not asked to determine whether or not the 

substantive judgments made by an agency are arbitrary and capricious in this type of judicial review. Judicial review of the IQA, by 

comparison, would involve precisely this issue. It would therefore 

enmesh judges in science policy disputes with no objective or clear 

resolution. 

An additional problem is that judicial review would create an undesirable Daubert kind of process. An agency, EPA for example, 

often must decide the level of regulation on the basis of incomplete 

scientific information about the extent of a risk to people in the environment. Therefore, as you heard in the last panel, in order to 

access risk we have to plug the gaps by adopting science policy assumptions. These policies serve the precautionary orientation of the 

agency, often by adopting a worse case scenario such as, there is 

no safe level of exposure to a known or suspected carcinogen. If 

there is judicial review of IQA petitions, then the IQA becomes a 

kind of Daubert process because it establishes standards for what 

scientific evidence an agency may publish in its notice of proposed 

rulemaking. If there is judicial review prior to notice in comment, 

the courts indeed become the gatekeepers for rulemaking. 

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The problem with making the IQA into this kind of Daubert-like 

process, is this—the OMB-IQA guidelines—and as you’ve heard in 

the last panel, the proposed OMB risk assessment guidelines blur 

the line between defining what is acceptable quality for scientific 

information and what types of policy assumptions can be used to 

fill the gaps in the data. These guidelines therefore threaten to undermine the precautionary tilt that Congress has built into environmental and health and safety statutes. In theory this conflict 

might be avoided if Congress said the precautionary laws were to 

prevail in IQA lawsuits, but this still puts the courts in the position of determining when such conflict exists, which is a problematic activity. 

Judicial review of the IQA also threatens—or actually worsens—

rulemaking ossification. The IQA petition process is utterly redundant in the context of rulemaking. Persons with complaints about 

information can file comments, and then they have the opportunity 

for judicial review if those comments are ignored or not satisfactorily answered. If there’s independent review of information used 

in rulemaking, the door is open for litigants to start collateral attacks on discrete pieces of information that are part of the rulemaking record. If these attacks occur prior to rulemaking, they will 

delay it. If they occur during rulemaking or ever after, such lawsuits will be highly disruptive. I mention after because there have 

been petitions that are exposed attacks on information used in the 

completed rulemaking. It will also constitute a judicial burden, as 

you heard in the last panel. 

So, all and all, caution is in order. The idea of judicial review 

seems to me to be highly problematic, and if it comes up and is proposed in Congress, it ought to be carefully considered. That didn’t 

happen the last time around, as you know, regarding adoption of 

the IQA. Hopefully this time we will get more considered judgment. 

[Applause.] 

Mr. LUBBERS. Thank you, Sid. You may have noticed there is one 

dispute that we haven’t resolved, whether it’s the Information 

Quality Act or the Data Quality Act. We’re talking about the same 

act here. 

Mr. SHAPIRO. Did I call it both? 

Mr. LUBBERS. It’s because it doesn’t have an official name. I 

think OMB is now calling it the Information Quality Act so that, 

I think, is taking over. 

Our next panelist is Tom McGarity, who is an alumnus of EPA, 

but he is now a chair professor at the University of Texas, where 

he has taught and I think played intramural football since 1980. 

He teaches administrative law, environmental law, food and drug 

law, and a seminar in law and science. When he was a consultant 

of ours at the Administrative Conference and undertook research 

projects for us on some things like EPA or OSHA regulation, his 

technique, I remember, was to be a relentless interviewer. I think 

he interviewed everybody from the administrator to the janitor at 

EPA. Tom’s going to be discussing the aforementioned Daubert 

case on the admissibility of scientific evidence and its possible role 

in judicial review of rulemaking. And I hope he’ll tell us what the 

Daubert case actually requires. 

1283

TOM MCGARITY. Thank you, Jeff. I should also mention that I too 

am associated with this outfit called the Center for Progressive Reform. It used to be Center for Progressive Regulation but we’re bigger than that now. And I did want to thank Curtis and Mort 

Rosenberg and, of course, Neil for putting this on. This is a great 

gathering of folks and a tremendous pulling together of expertise 

on this area of rulemaking, which many of us have studied, as it’s 

pointed out, for many years. In the vein of shameless promotion, 

I should mention that Professor Wagner, who is on the next panel, 

and I are also working on a book in this area called, ‘‘Vending (?) 

Science,’’ which we’ve signed a contract with Harvard University 

Press on, but it’s not really ready to be purchased on the Internet 

yet, so, we’re working away on that. 

Some of the thoughts here were also included in an article that 

I wrote about three years ago in Law & Contemporary Problems, 

which I can certainly—if you have an interest in—send to you. The 

problem here I’m going to address is a little different than what 

Sid was talking about, judicial review of the Information Quality 

Act, or the Data Quality Act, however you want to call it, to a proposal that’s in my view even more nefarious, and that is to incorporate Daubert-like principles of judicial review into judicial review 

of all scientific rulemaking or rulemaking with a scientific perspective. 

Let me talk about Daubert. Daubert grew out of aggressive efforts of trial lawyers to press the limits of scientific knowledge on 

behalf of allegedly injured plaintiffs, and the equally aggressive reaction of the business community and the defendants in that litigation. No question that those efforts were really quite aggressive 

and in some sense perverted the science. Daubert gave rise to a Supreme Court case interpreting federal rules of evidence to limit, 

shall we say, a term that had been coined by a think tank up in 

New York called junk science. The Supreme Court saw this coming 

down the pike, used Daubert as its opportunity to put limits on 

this via the rules—federal rules of evidence. 

Initially, it looked to be all about whether the Frye rule, which 

said that scientific evidence, in order to be admissible in court, had 

to be generally accepted in scientific community, applied under the 

federal rules of evidence to—not just in the criminal context where 

it had its origins, but to civil context as well, and the court said, 

no, federal rules of evidence have changed that. They have established the district judge as a gatekeeper for the presentation of scientific evidence to juries, and by and large, the resolution to factual 

issues and common law litigation is done by juries, and that the 

gatekeeper role is to assure the relevance and reliability of the scientific information that’s presented. Well, relevance is something 

courts do all the time. That’s all about the judicial function. Reliability in the context of science was a little different, a little questionable, as in fact, the court, on remand in the Daubert case, 

pointed out—not something that the courts are particularly comfortable with. 

Well, as it looked like initially, certainly from the face of things, 

that Daubert represented a victory for the plaintiffs in that the 

case was remanded so that the plaintiffs could have a trial in 

which that evidence was evaluated under Daubert principles rather 

1284

than the Frye rule. The plaintiffs had lost under the Frye rule. It 

turned out to be quite the contrary, and it had a profoundly negative impact on efforts by the plaintiff’s attorneys to use common 

law torts to hold companies accountable for the harm done by their 

products and activities. Now, attorneys from the very same companies are urging that this Daubert-approach, this Daubert-role for 

the court, which they urge successfully now to avoid common law 

liability. They want the federal courts to presume a federal similar 

role in reviewing agency action with respect to risk assessments 

undertaken by federal agencies. 

In my view, and I think the view of many others, what they 

would like to do is incorporate this with what Rena has already described to you better perhaps than I can, this corpuscular approach 

that is evolving in Daubert hearings at the common law into the 

administrative law of judicial review of rulemaking. I won’t elaborate on the corpuscular approach—she did a wonderful job of 

that—but it’s really an idea that the court should focus on the 

flaws, whatever they might be, in the corpuscles of the data, the 

individual studies rather than the overall scientific reliability of the 

conclusions, the broader conclusions. 

Now, I have several reasons that I would like to suggest to you 

for why ‘‘Daubertizing’’ judicial review of rulemaking is a profoundly bad idea. One, I’d like to seize on what Peter was saying; 

historically there’s just no basis for it in the Administrative Procedure Act. Not even close. One might agree with Judge Leventhal 

that you have to put your data on the table via the Freedom of Information Act or whatever, or just general notions of evolving law 

of administrative jurisprudence that were evolving in the 1960s 

and 1970s, and still reject the conclusion that the court is to be a 

gatekeeper of the reliability of the science that the agency is applying in making its rules and resolving the kinds of science policy is 

used that arise typically in rulemaking. And policy does play a 

great role. 

I reminded myself of this just the other day as I was looking 

back at the Federal Register preamble for all the original National 

Highway Traffic Safety Administration (NHSTA) standards, which 

at that time was in the Department of Commerce—all of the 

NHTSA standards—like the preamble for all of the EPA Ambient 

Air Quality standards. That’s the National Ambient Air Quality 

standards about which we’ve had huge fights and gone to the Supreme Court about. The preamble to both of those rules was one 

page in the Federal Register. That was it back in the ’60s and the 

’70s. That was it. That was the extent of the explanation you got 

and that you were entitled to. Things certainly have changed. 

And of course change, as Bill Peterson said, it’s a great tonic for 

the rulemaking process, for the agencies to know that they’ll be reviewed by courts who are intelligent like Judge Leventhal. If Judge 

Leventhal—and I’ve said this may times—if Judge Leventhal were 

the federal judiciary, I’d be comfortable with hard-look review. But 

Judge Leventhal isn’t all of the federal judiciary. There are other 

judges in the federal judiciary as well. And that’s my first point 

really; they’re not qualified. The judges aren’t qualified to play this 

role. And I think that we’re fooling ourselves if we think they are. 

1285

In the article that I wrote in Law & Contemporary Problems, I 

used the Flue-Cured Tobacco case, the judicial review of EPA’s risk 

assessment from environmental tobacco smoke to show that—and 

I think I demonstrated it very well—how we had really a judge 

that was way beyond his proper range of expertise tearing apart 

an agency document that been years in preparation. Fortunately 

the Fourth Circuit, just as it did in the Salt Institute case, ultimately reversed that case and said, look, this isn’t one we should 

be looking at. This case isn’t right for review. 

Second, I think that inevitably if the courts are going to play this 

gatekeeper role over the science, they’re going to be playing a policy-making role as well, because science in the administrative context and the rulemaking context is a blend of science and policy, 

as Rena pointed out earlier this morning, and I’m sure Wendy will 

tell us, and certainly she’s written about, at great length this afternoon. So what we do there is policymaking gets taken over by an 

undemocratic—which is to say not elected and unaccountable—institution. Well, agencies weren’t elected either, but their heads 

were appointed by elected officials and they are more accountable 

than the judges who serve with lifetime tenure. 

Third, I think—I don’t want to press this too hard—it raises 

some serious separation of power questions that are just not relevant under Daubert. Daubert is just a matter of supervising the 

lower courts—evidence that goes before courts. Here we’re talking 

about an agency which presumably has expertise, which is in the 

executive branch. It’s supposed to be making these kinds of decisions. 

Fourth, I think it ultimately will pervert regulatory science by 

encouraging even more elaborate efforts to bend science to the ends 

of that—either of the parties—interest groups, the stakeholders, or 

whatever—would like to bend it to. And I think that’s bad because 

we may ultimately wind up with worse science and it will put us 

in a situation like we may have been in in the courts prior to 

Daubert. 

Finally, I believe that the reformers, as they call themselves, who 

are suggesting this Daubertization of judicial review of informal 

rulemaking, are really not so much interested in good or sound, as 

they sometimes say, science as they are in desires of achieving regulatory relief of the sort that they have not been able to obtain in 

Congress. And to that extent, the whole exercise seems to me to be 

both illegitimate and undemocratic. 

And with that, I’ll turn it over to Don Elliott. 

[Applause.] 

Mr. LUBBERS. Thank you, Tom. I hope you’ll forgive me for just 

noting one piece of irony, which is back in the day, liberals used 

to be in favor of judicial review and opposed to using standing and 

ripeness as blocks for judicial review. 

Mr. MCGARITY. I’m still no fan of standing, by the way. 

Mr. LUBBERS. Okay. Well, we’ll hear next from Don Elliott. Don 

has three jobs, as he mentioned when he asked his question. He 

is a partner at Willkie Farr & Gallagher LLP, in Washington here, 

where he heads the firm’s worldwide environmental department. 

He’s also serving as adjunct professor of law at both Yale and 

Georgetown, where he teaches administrative and environmental 

1286

law at both places. He also served as the general council of EPA 

from 1989–91. And while a consultant at the Administrative Conference of the U.S. (ACUS), he conducted one of the first, and still 

one of the best, empirical studies of the impact of the Chevron case 

on judicial review with his colleague Peter Schuck. And Don was 

a late edition to our panel. I want to thank him for bailing us out 

when we lost a panelist. So I know you’re doing this at rather short 

notice, but thank you. 

E. DONALD ELLIOTT. Thanks, Jeff. I appreciate it. I appreciate 

being here. I’m a panel one wannabe. 

[Laughter.] 

Mr. ELLIOTT. I really think the action on science and rulemaking 

has really moved into the OMB review process. And I think it’s 

really quite interesting that among my colleagues on the panel, 

who are among the very small group of most distinguished academic experts in this field, we have one of them talking about the 

history that took place with regard to rulemaking in the ’70s—a 

creative period that basically ended with the Vermont Yankee case 

at the end of the decade—and my other two colleagues are talking 

about two things that judicial review might do in the future but 

that they advocate that it shouldn’t do. 

And I think one of the things that is significant about judicial review on the scientific side is really the dog that has not barked. I 

think judicial review has been a real failure in the last 30 years 

to try to develop the kind of techniques for managing highly technical and scientific cases that Judge Bazelon and Judge Leventhal 

were talking about in the middle 1970s. Peter and I were both 

clerks for Judge Bazelon. I was the law clerk that worked with him 

on the lower court opinion on Vermont Yankee that Peter got 

unanimously reversed in the Supreme Court. I was also the law 

clerk on the Ethyl case, which he mentioned. 

But 35 years ago, Judge Bazelon was advocating the importance 

of peer review. And it really took Sally Katzen and John Graham 

and OMB to put in place the mechanisms for the development of 

a peer review process at the agency level. When I took over as EPA 

general counsel in 1989, EPA had six different ways of doing risk 

assessment among its programs. Each of the four programs has 

their own way and the Superfund Program had two or three ways 

of its own. And one of the things that Sally did—and I think it’s 

really one of the great unsung stories of success in government—

is really begin to standardize that process of risk assessment, create requirements for peer review at the agency level. And that 

process which she began was really continued by John Graham. I 

think this is no coincidence. 

Really, the OMB review or the OMB process is a form of metaregulation. It uses the same administrative law techniques to regulate the regulators. And it is more effective than case-by-case judicial review for many of the same reasons that environmental law 

is more effective than nuisance law. I’ve had the experience, both 

as EPA general counsel and as a private litigant, of taking several 

cases in parallel through the judicial review process. And I can tell 

you in both contexts that the OMB review process is consistently 

more sophisticated and better able to penetrate to the real issues 

1287

than a judicial review by non-expert judges for many of the reasons 

my colleagues have identified. 

Peter and I have never talked about this but I do agree with 

him. And I’ve been teaching for many years that Judge Bazelon’s 

view of the necessity of creating peer review and other institutions 

did ultimately prevail, even though Peter won in the short term 

and got Vermont Yankee reversed in the Supreme Court. On the 

long-term perspective, I think the rise of OMB review, particularly 

on scientific issues, is the major trend of our era. And I think it 

has happened precisely because courts have not been very generative. They have not contributed much to improving rulemaking in 

the last 30 or 35 years. 

Well, my talk is really about where did they go wrong, and at 

the end, I’ll come back and talk about what I think they can do 

now and what their role should be in conjunction with OMB review. The first key case is the Ethyl case, which has been mentioned. And in my view, Ethyl did a pretty good job of getting it 

right. It was a review of what is always cited as one of EPA’s most 

successful public health regulatory measures—that is taking lead 

out of gasoline. And as the law clerk who worked on Judge 

Bazelon’s opinion in that case, which was the deciding vote, I can 

tell you that the scientific evidence was very weak. And I think the 

Ethyl case demonstrates the need to give some leeway to scientific 

judgment, and not to adopt the kind of corpuscular view of data, 

which my friend Tom McGarity has attacked. 

Judge Jay Skelly (phonetic) writes opinion conceived of the question for the court as a, quote, ‘‘delegated decision of legislative policy’’—as a policy decision, which should not be reviewed with the 

rigor proper for questions of facts. So, a strong distinction between 

policy questions—and the way they should be reviewed in administrative law—and questions of fact. That was in 1976. Unfortunately, that approach was rather short lived, and the Supreme 

Court in the benzene decision in 1980, essentially reversed the precautionary decision and and substituted a rule that the agencies 

must prove significant risk or incremental benefit from their regulations, and that the scientific underpinnings of that decision of significant risk should be reviewed as a matter of fact, rather than as 

a matter of policy. And I think that’s where we began to go wrong. 

And I’ve had a long-standing debate with my friend Leslie 

Carothers, the president of the Environmental Law Institute—who 

is actually one of the attorneys representing EPA in the Ethyl 

case—as to whether or not Ethyl has been overruled. It was recently cited by the D.C. Circuit so it hasn’t been overruled, but it’s 

been interpreted as applying only to one, narrow section of the 

Clean Air Act, whereas the benzene decision and its approach casts 

a very, very broad swath. 

My wife, Gail Charnley, who is a scientist and risk assessor, and 

I have written in an article in the Environment Law Report in 

2002, that by overemphasizing the factual component of risk assessment, U.S. courts have under-valued and fundamentally misunderstood the nature of the risk assessment enterprise. I think 

much the same point is written—is made in a fine but inappropriately named article by my former student and friend Adam Babich, 

‘‘Too Much Science in Environmental Law.’’ It’s not really that 

1288

there’s too much science in environmental law; it’s that there are 

a number of other policy questions that can’t be undervalued. 

An example of the consequences of the, I think, erroneous 

conceptualization of science as an issue of fact rather than an issue 

of policy, is the Corrosion Proof Fittings case written by Jerry 

Smith (phonetic)—who actually was my law school roommate—reversing an EPA precautionary regulation banning uses of asbestos 

and applying the benzene court’s test. If you can’t ban asbestos 

with hundreds of thousands of cases pending—and really one of the 

great public health disasters of our time, because you don’t have 

sufficient factual support—it’s very difficult to take precautionary 

reaction—it’s very different to take precautionary action against almost any substance. 

I saw Jerry recently. I was down arguing a case in the Fifth Circuit and I stopped by, and he said, ‘‘Don, I hear you don’t like my 

benzene decision.’’ And I had just testified a week or so earlier that 

I though it was a public policy and public health disaster. Congress 

is actually considering passing a law that would essentially overturn that decision and give EPA authority to ban asbestos, but I 

think it’s quite surprising that we are one of the few countries in 

the world that still allows asbestos to be included in manufactured 

projects. 

How much science is enough science really depends on the context, and environmentalists once understood this. Dave Doniger 

(phonetic) in a great article in 1978 wrote, ‘‘It is one thing to say 

that some Americans must die so that other Americans may live. 

It is another thing to say that some Americans must die so that 

other Americans can have see-through plastic wrap,’’ basically 

making the point that how much evidence is enough evidence to 

justify regulation will vary from context to context. 

Unfortunately, though, today my friends like Lisa Heinzerling 

and Sid Shapiro and Tom McGarity have all led the charge on the 

notion that we should not really consider benefits or economics 

when we make a decision to regulate, and I think that’s unfortunate. Even the European Commission, with regard in its discussions of precautionary principle, recognizes that the decision of how 

much precaution to undertake should also be based on an assessment of cost and benefits, and that judging what is an acceptable 

level of risks for society is inherently a political responsibility. 

Ironically, I think excluding economics and the availability of 

substitutes from the discussion actually makes it more difficult to 

regulate certain substances, not easier, as some components wrongly suppose. The classic case on this in American law is International Harvester, by our old friend, Judge Leventhal, who pointed out that the extent of proof or the extent of scientific certainty 

that should be required should be a function of the consequences 

of an error in one direction or another. And in order to make that 

calculus of how much science is enough science, you can’t consider 

scientific support in a de-contextualized way as an issue of fact 

that is completely unconnected from the other policy issues in question. 

A good example is nanotechnology. I’m currently working a lot on 

nanotechnology. I’m teaching about it at both Yale and Georgetown. And nano materials are used in suntan lotion to make it 

1289

transparent, but they have a particular propensity or at least a 

possibility of passing through the skin. It would, in my view, require a lot less evidence to take some regulatory action about that 

use, which basically simply makes suntan lotion transparent rather 

than goopy and creamy, than if you were using nano materials say 

to target tumors in a pharmaceutical context. So it seems to me 

that it’s not just a question of fact; inherently the question of 

whether or not there’s enough evidence to regulate has to be discussed in the context of the benefits and the consequences of a decision in one direction or the other. 

Well, what’s the ad law payoff to all of this? Well, first, it’s that 

the court should review questions of science and risk assessment 

more as questions of policy requiring transparent explication; i.e., 

under the State Farm standard in which the agency has to discuss 

its resolution of these policy questions, and less of questions of factual support in the record divorced from the policy context. Now, 

I say less; there has to be some data in the record but the key 

question is how that amount of data is evaluated in light of the 

risks in one direction or the other. And the last point is perhaps 

the most important one: Non-expert judicial review should reinforce 

expert peer review. I’m just finishing my last point and I’ve got one 

minute and 30 seconds left. 

My view is that the courts need to view themselves in a secondary role and begin to reinforce the norms for science that have 

been developed elsewhere. For example, many of the risk bulletins 

that have been developed by OMB—the requirements for peer review at the agency level—should be taken into account by courts 

as they review the results of a rulemaking. And I think there is 

a great deal that can be done for the courts in a subsidiary role 

to enforce some of the norms and principles that have been developed elsewhere. 

Thank you. 

[Applause.] 

Mr. LUBBERS. Thank you very much. We have about 20 minutes 

or so for questions, and I first want to give our panelists a chance 

to say anything they would like to say, and then Peter has something. 

Mr. STRAUSS. Well, I just want to say that it’s not only the judges 

who aren’t scientists; neither are lawyers, usually, and that’s the 

source of a good deal of the difficulty. To go back to the benzene 

case that Don referred to, for me, the great mystery about that 

case is that Justice Stevens’ writing didn’t see that Congress had 

given a panel of scientists in a department outside of OSHA— NIOSH—the National Institute of Occupational Safety and 

Health—the responsibility for helping OSHA set its priorities. And 

it had said again and again, benzene ought to be your priority. The 

court paid no attention to that. I still don’t understand that. 

Mr. ELLIOTT. And that would be a very good example, Peter, of 

what I call reinforcing expertise elsewhere. One point that I meant 

to make and I didn’t make is I think the benzene case, arguably, 

is not sort of decontextualizing things. The court at least talked 

about the workplace, and you could read the text of the benzene 

decision as being limited to the OSHA Act. However, subsequently 

the Fifth Circuit adopted the benzene test across the board, under 

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all health and safety statutes. And that’s really the time that the 

concept of science as a fact, you know, decontxtualized from the 

other policy issues—that’s really where the error takes place is 

when the Fifth Circuit reads the benzene decision not as a case 

about the workplace, but as a rule that applies across the board. 

And of course as an agency general counsel, you have to be concerned about the worst circuit because typically with a few exceptions, your regulations can be challenged in any circuit. So the law 

you’re really up against is the Fifth Circuit law that says you have 

to show factually, with data and studies in the record, a significant 

risk in any case before you can regulate. 

Mr. MCGARITY. Let me just chime in on benzene since it gives 

me an opportunity to talk about another long-departed-now institution, the Office of Technology Assessment. As they looked into the 

actual risks that were set out in Justice Stevens’ hypothetical, 

where he has giving guidance to the Fifth Circuit and the agencies 

as to how to distinguish between a significant risk and an insignificant risk, he said, a one in a thousand risk of contracting cancer 

from breathing fumes at a gas station would clearly be a significant 

risk, whereas a one in million risk of contracting cancer from 

drinking a glass of water are one in a billion—I’m sorry, he said 

a one in a billion risk of drinking a glass of water would clearly 

be insignificant. As it turns out, those two risks are almost identical when you look at the exposure, which of course is very important in risk assessment. There’s a lot more exposure to drinking 

water than there is to workers in gas stations. So the court in offering its more or less officious judgment as to the different between 

the two risks offered no guidance whatsoever. 

Mr. LUBBERS. Sir. 

Question: Yes. Mark Frankel. I’m with the American Association 

for the Advancement of Science, AAAS. All of you have expressed 

some concern about the ability of federal judges to deal with scientifically complex matters. As you may know, federal judges have 

the power to appoint experts to serve as court appointed experts to 

help them work through those problems. And there have even been 

a few appellate decisions recently where the appellate court has remanded it back to the District Court and said, ‘‘You know what? 

You really should have appointed a court-appointed expert to help 

you.’’ To what extent do any of you think that that might be a useful way of—not the only way but a useful way of dealing with the 

concerns that you raised? 

Mr. ELLIOTT. Well, let me respond because I’ve written a lot of 

articles advocating it, and as Joe Cecil (phonetic), who is sitting 

next to you knows, I was part of the Carnegie Commission that 

really recommended that and then got the AAAS involved in making those recommendations. So I’m a longtime supporter and fan 

of judges appointing independent scientists and also science panels, 

which will be the subject of the next panel, and I’ve written a lot 

about that. 

However, even under the best of circumstances, I don’t think that 

really is a solution to the problem. And I think that over a 30-year 

period, we did not see judicial review developing the kind of metaprinciples for how to review scientific rulemakings that we’ve seen 

developed by OMB through the notice and comment process very, 

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very quickly. But I do think the two of them need to work in tandem, but we should understand what has happened through the 

OMB review process, I think, as OMB filling a hole that has been 

left by the failure of judicial review to develop adequate principles 

for review of these kind of highly technical rulemakings. 

Mr. LUBBERS. Sid. 

Mr. SHAPIRO. There is really two dualities here, two sets of dualities. There’s science and then there is regulatory science, which is 

science used in a specific context to decide about some risk in support or opposition to a particular regulation. And the closer we get 

to regulatory science, the more its chock full of policy assumptions 

and the less it’s full of facts. So, I think Don is right so far. 

The second duality is sort of two camps of people, sort of those 

who have faith in science, even in the regulatory science context, 

and the skeptics. And if you are in the first group, like Don Elliott, 

then you’re for institutionalizing peer review and other devices to 

try to improve the science and help it—help the government make 

better decisions. If on the other hand you are a skeptic about what 

science can teach us in this area—no fault of science; there is just 

not enough time and data in the world to know all the answers we 

need to know—then surely you look at the science, but at some 

point you do your sort of procedural cost/benefit test and say, you 

know, we can keep looking at this science, we can keep parsing it, 

we can keep having a third level of peer review, we could even involve judges, but at the end of the day we aren’t going to be any 

smarter. There is just nothing there to be smarter about. 

So we just have to go on and make the kind of policy choices we 

need to make at the end of the day. If you’re in the second camp, 

you tend to be more dubious even about institutionalizing these 

policy review processes, such as Don has urged, because they end 

up delaying things and they don’t really produce much in the way 

of information. 

Mr. STRAUSS. I think we do need to find ways of educating judges 

to about what they don’t know and it’s possible that science consultants could be helpful in that respect. But there is no way to get 

a court to reverse an agency judgment faster than to be able to 

suggest to it that the agency has based its judgment on some information, some education that it got privately from some experts that 

have consulted off to the side. And I don’t see why that proposition 

should be any different for courts. 

BILL HIRZY. I’m teaching here at American University. I’m on detail from EPA where I’m an officer of the union that represents 

professionals at headquarters. In 1990, during your tenure, Don, as 

general counsel, we filed a petition under Section 21 of the Toxic 

Substances Control Act, asking the agency to undertake rulemaking in connection with some carpet which was installed at 

headquarters and made a lot of people sick. I was president of the 

union during that time and when that information got out to the 

general public, I got calls and letters from all over the country 

about similar problems that other people were having. Subsequently, 26 states attorneys general also filed a petition with the 

U.S. Consumer Product Safety Commission (CPSC) in connection in 

this matter. A day before the agencies’ response to our petition was 

due, a representative from your office came down to me and said, 

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Bill, we’re not going to grant this petition because it would cost the 

carpet industry billions of dollars. I wonder if you could elucidate 

a little bit about the economic aspect of that decision in connection 

with what you’re saying here. I understand now exactly what you 

meant but I’d like to have a little bit of a word from you if you 

would. 

Mr. ELLIOTT. Well, I remember those days well. The EPA staff 

started calling a certain area of the Waterside Mall the ‘‘death 

zones’’ and refused to go into it. So I actually moved my office and 

my immediate staff down into the death zones and we lived there 

for the summer and put the interns in my office. Just a little bit 

of a—you know, I do think that consideration of the economics can 

sometimes lead to—or the benefits of something can sometimes 

lead to a decision not to regulate. And I certainly well understand, 

say, Tom McGarity coming up through the pesticide program, 

where lots and lots of scientifically demonstrated risks are deemed 

to be acceptable because of the economic benefits of a particular 

pesticide. 

I think it goes both ways, and without getting into whether that 

decision was correct or not—and I don’t really know; I wasn’t involved in it—I always felt that those types of decisions should be 

made by the program officer rather than by the general counsel. So 

I wasn’t really involved in that. But I would say that I do think 

that in deciding whether a small or unproven or undemonstrated 

risk is one that merits regulatory action, one does need to consider 

both substitutes and economic benefits as opposed to looking at the 

issue of hazard or even risk in isolation. I think it’s incoherent to 

make a decision to regulate without considering the costs and benefits and also the availability of substitutes. 

But I can’t really try to justify the particular decision in the particular case that you’re talking about because I really don’t know 

what the facts were. And, you know, I don’t think that every decision that EPA made during my tenure there was necessarily correct. I’ve now been out of government long enough that I can say 

that. But, you know, based on the limited facts that you provide 

about it, sounds like a bad decision, and there are some times bad 

decisions that get made in government. But I think it’s important 

to try to decide what the right way to make decisions is and I suppose that’s probably why I’m an academic rather than no longer in 

government. 

UNKNOWN SPEAKER. Just one quick follow-up. Our later analysis 

of that decision was that in order for EPA to undertake the rulemaking we asked for, you would have had to make a finding of unreasonable risk associated with that particular product, and that 

the billions of dollars it would cost to the carpet industry would 

have been the result of tort actions that would have followed EPA 

making such a finding. 

Mr. ELLIOTT. Yeah, I mean, I have—I do think that—and I’ve 

written a lot and testified a lot that Section 6 of the Toxic Substances Control Act (TSCA) is broken and really needs to be fixed. 

And I think one of the lessons that EPA took away from the asbestos decision that I talked about is if you can’t regulate asbestos 

with 100,000 studies in the literature and hundreds of thousands 

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of cases in the courts, when are you going to be able to use Section 

6 of TSCA? 

And unfortunately, I don’t think Corrosion Proof Fittings is really an outlier. It’s somewhat extreme, but I think it’s very difficult 

to regulate in the United States based on relatively weak scientific 

evidence. And one reason for that is that we don’t consider issues 

of substitute and we don’t consider issues of benefit. And we’ve recently had this very debate with regard to the ratification of the 

(inaudible) conventions, with basically the Democrats opposing 

ratification of these international conventions because they want to 

limit the consideration of new substances solely to the issue of risk 

and not consider the potential benefits or the potential substitutes. 

And that just seems to be me to be incoherent. You can’t decide to 

regulate based on science in isolation. It has to be part of a broader 

policy conversation. 

Mr. STRAUSS. One of the characteristics of judicial review is that 

it does not engage in its own cost/benefit analysis, which is possibly 

all to the good. But this conversation has reminded me of the 15-

year or so postponement of the introduction of airbags into American automobiles that resulted from the Sixth Circuit’s determination that—unfortunately, the model that was used to test the sufficiency of airbags had a neck that was just not quite the right stiffness in relationship to the human neck, and therefore the airbag 

rule that was then ready to go into place could not be put into 

place. 

UNKNOWN SPEAKER. Crash test dummy case. 

Okay, yes. 

PASCUAL PASKY. Hi. I’m Pascual Pasky with the US EPA. I’d like 

to return to the issue of transparency, particularly the transparency of the rules of the game. Professor Elliott cited Leventhal 

for the proposition that scientific proof should be a consequence or 

a function of the consequences of error. And the panel talked all 

about the procedure of rules that the public might use to guard 

against false positives. So my question is, what is the countervailing jurisprudence the public might use if they were able to 

point to overwhelming evidence—and I’m talking about both physical evidence as well as the evaluation piece, the economics piece—

that the problem exists and therefore compel governmental action, 

guarding against a false negative? 

Mr. ELLIOTT. Well, the mechanism is the one that the gentlemen 

behind you—I forgot his name—from EPA mentioned, and that is 

to file a petition for rulemaking. That exists under many of the environmental statutes. It also exists under Section 553(e) of the Administrative Procedure Act, where people outside the government 

can attempt to force the government to take action. And that is actually a distinctive portion of our administrative law that exists in 

very few other countries around the world, you know, essentially 

empowering citizens to come in and attempt to force government 

to take action. 

Unfortunately, a series of court cases, which we could go into, 

have raised the bar very high and basically have said that for a 

citizen to come in and force the government to take action, the citizen has to put together pretty much the entire record and present 

it to the agency in order to force the agency to take action. And 

1294

since the record—since the record-compiling function is so high, as 

the Corrosion Proof Fittings case demonstrates—namely EPA spent 

10 years and, you know, 100,000 page record and that wasn’t 

enough—to put that type of burden on a citizen or environmental 

group and say you can only force the agency to take action if you 

bring them a complete record, which is basically what the case law 

says, I think really has deprived that section of the EPA and of 

many of the environmental statutes of the role that the drafters 

really envisioned for. 

Mr. STRAUSS. It’s a bit worse than that. 

[Laughter.] 

Mr. ELLIOTT. I was trying to be measured. 

Mr. STRAUSS. No, No, because if the agency complies that record, 

the judicial review that occurs on the basis of its judgment is the 

hard look that we’ve been hearing about. If you compile the record 

and the agency says too bad, so sad, we’re not going to do anything, 

you get, at best, a very soft look from the courts. 

Mr. LUBBERS. I think that is all the time we have for our panel. 

I want to thank you for an excellent presentation. 

[Applause.] 

Mr. LUBBERS. This afternoon we have two panels on the capability of government agencies to use science. The next panel will 

convene at 1:15. For lunch, there’s a map outside on the table. You 

just cross the street at the light, walk straight, and you’ll hit a 

number of eating emporiums. Thank you.

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TUESDAY, MAY 9, 2006

11:15–2:35 p.m.—Panel 3: 

‘‘SCIENCE ADVISORY PANELS AND RULEMAKING’’

Moderator: 

Mort Rosenburg, Congressional Research Service

Panelists: 

Wendy Wagner, Professor, University of Texas School of Law 

Jamie Conrad, Assistant General Counsel,

American Chemistry Council 

Richard Parker, Professor, University of Connecticut School of Law 

Fred Anderson, Partner, McKenna Long & Aldridge, Washington, DC

MORT ROSENBERG. Good afternoon. I think we’re about to get 

started again. My name is Mort Rosenberg. I’m an attorney with 

the American Law Division of the Congressional Research Service, 

and I’ve been enlisted by the House Judiciary Committee, along 

with Curtis Copeland and T.J. Halstead of my division, to explore 

in a very unique way some of the emerging issues in administrative law and process. This symposium, I believe thus far, justifies 

the judgment of the House Judiciary Committee that gathering important information and ideas about understanding the current 

state of administrative law and process in the federal government 

outside of the confines of set-piece committee hearings was a sound 

and a wise judgment. 

With this panel on science advisory committees in the rulemaking process, we enter into an important and sometimes very 

volatile debate over whether we can or should attempt to clearly 

separate science and politics in the regulatory decision making 

process. To some, this seems paradoxical because we also want 

science to be relevant to policymaking. A better approach, some 

say, would be to focus attention on developing transparent, accountable, and effective processes to manage politics and science, 

not to pretend that it doesn’t exist. 

I think this panel is well qualified to address these and other 

issues. We have today Wendy Wagner, professor of law at University of Texas Law School; Jamie Conrad, assistant general counsel 

of the American Chemistry Council; Richard Parker, professor of 

law at University of Connecticut Law School; and Fred Anderson, 

a partner at McKenna, Long & Aldridge here in Washington, DC. 

I’m going to start with Wendy. Wendy is the Joe A. Worsham 

Centennial professor at the University of Texas Law School in Austin. Before entering academia, Wendy served as an honors attorney 

with the Environmental Enforcement section of the Environment 

and Natural Resources Division of the United States Department 

of Justice in Washington and as the pollution control coordinator 

in the Office of General Counsel of the Department of Agriculture. 

Wendy teaches courses in torts, environmental law and regulation, 

and seminars on law and science and then on complex problem 

solving. Her research focuses on the law-science interface in environmental law, and her articles have appeared in numerous major 

law journals, you know, in the country. Wendy serves on the NaVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 01295 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230
1296

tional Research Council’s Committee on the Selection and Use of 

Models in the Regulatory Decision Process. She also serves on the 

Council of the Administrative and Regulatory Law section of the 

American Bar Association, the council of the Society of Risk Analysis, and as a member scholar of the Center for Progressive Regulation. Wendy? 

WENDY WAGNER. Thanks very much, Mort. As the first panelist 

on today’s panel, I think I’m taking on the role of trying to sketch 

out a big picture of science advisory boards, and I also want to offer 

sort of a bottom line from that. So just to give that to you now just 

in case your metabolism kicks in and you start to fade me out, 

which I know happens at this time of day, the bottom line is that 

science advisory boards serve an extremely important function in 

rulemaking—extremely important. 

But I analogize them somewhat to a very sharp, wonderful, expensive kitchen knife. They serve as a magnificent utensil in the 

kitchen. They can do wonderful things. But if you use them wrong, 

they not only don’t have benefits, but they can have enormous adverse consequences. And I think the trick then is to find a way to 

use science advisory boards to bring out the positive aspects that 

they have to bring to rulemaking without getting into some of the 

horrific costs that can attend if you do them unwisely or imperfectly. 

I’m going to first start again as sort of opening the entire day— our first panel on science advisory boards—to give some basic facts 

and figures on science advisory boards just to orient ourselves into 

this area. And then I’ll plough into the two main points of my talk, 

first to talking about why we need these science advisory boards, 

why they are so critical and what some of the dangers are—and I 

think Al Teich sort of hinted at some of those in his slide—and 

then go on to offer, based on reading the literature on science advisory boards, which is slim but extremely good, what I call, good 

practice presumptions that should guide science advisory boards in 

the future. If we’re actually designing these, these are some presumptions or principles that might help us decide when we’re actually doing it right and when we’re doing it wrong. 

All right, starting with some facts and figures, Mr. Kovacs said, 

‘‘Forcing good quality data into the regulatory process does not 

exist.’’ And I’ve got to say, in terms of science advisory boards, that 

the numbers at least suggest that’s not the case. Today at this very 

moment, we have roughly 500 to 1,000 science advisory boards in 

process in the United States. They cost about $150 million to $250 

million a year in managing them. At EPA the budget is roughly 

$15 million to $20 million to manage their science advisory boards. 

And they have about 100 members and 10 subcommittees or 10 

committees. So they are a large infrastructure in our government, 

and I don’t think we should be taking them lightly. 

There’s a whole wide variety of science advisory boards. And 

again this is just basic orientation in terms of facts and figures, 

and I think it makes it hard to say anything concrete about them 

because they are so incredibly varied. They can be established in 

a number of different ways. Some are actually required by statute. 

Some are simply authorized by statute. Some are created by the 

agency. Some are created by the president. So they can be estabVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 01296 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230
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lished in a whole variety of ways. Most of them tend to be permanent, at least the most significant one that we might think of, but 

some are in fact temporary. Some give actually binding advice on 

the agency. Most give non-binding advice, but again we’ve seen an 

important split there. And many do serve a very significant role. 

Mark Powell is here, and in his book ‘‘Science at EPA,’’ he gives 

a lot of very helpful information about science advisory boards. He 

estimated that roughly 50 percent of EPA’s major activities at some 

point got cleared through a science advisory board and that roughly 

they issue about 60-plus papers and letters a year. So they can 

play a very significant role in agencies, and I don’t think we want 

to minimize the extent to which they are active in these things. 

There are constraints on their operation or how they operate. 

The agencies may have specific guidelines that constrain how a 

science advisory board works or how it doesn’t. But generally the 

default rule is FACA, the Federal Advisory Committee Act, and 

that sets out some very loose but important restrictions on how 

they do science advisory boards. So for example, they need to have 

open meetings unless there’s a special exception. They need to balance the members. They need to look for conflicts of interests and 

have a policy on that, and they also need really good record keeping—all pretty standard legal requirements that apply to science 

advisory boards. 

Now, in terms of their operation, another advisory board that is 

also caught under FACA and actually has its own little amendment 

is the National Academy of Science (NAS). And I just wanted to 

throw this slide in to make a point that I think is important when 

we think about science advisory boards. I want to urge you, at least 

in your own mind, to not think of the National Academy of Science 

in that same big category as agency science advisory boards, and 

this is for an institutional reason. Institutionally, the NAS’s existence has been—and I’m sure all of you are familiar with their extremely important role essentially as a mediator in science policy 

disputes. Their entire existence institutionally depends on their 

credibility and neutrality. If they’re viewed as partisan, down the 

road they’re going to lose business, and they’re going to cease to 

exist. So their main mode of operation is to assure that they appear 

credible and neutral, and that will keep them extremely vigilant in 

their operations. 

The same, I would submit, is not true of agency science advisory 

boards. They want to be neutral—that’s important to the credibility—but there are a lot of other values on the table as well that 

sometime I think will trump that. So institutionally I think it’s 

treacherous to try to lump these two together. And so for your mental model, at least, let’s think of something different than the National Academy of Science when we think of a science advisory 

board that has a whole bunch of different and varied and complicated institutional incentives. 

All right, so that’s a background. That’s an overview. Now, the 

question is—I mentioned at the very beginning of the talk—I view 

these as essential to science-based rulemaking, or I can see how 

they’re extremely important. What is the justification? Well, I 

think some of these issues have already come up before, but I want 

to go ahead and nail them down. And the first is what I call the 

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ugly truth about regulatory science. In most of these areas that 

we’re talking about—EPA, FDA—we’re dealing with regulatory 

science. And that has some peculiar features that make it especially vulnerable, especially fragile to attacks and also to disagreements. 

Now, I want to highlight two, although there’s many. The first 

I think you can see visually. I have up there a bibliography on 

studies that have been done on atrazine. This is on EPA’s website 

so it’s probably 10 years out of date, but nevertheless this is right 

off EPA’s website. This is the bibliography of the studies and toxicology done on atrazine herbicide and its effects on human health 

and animals. Now, visually you can look at that, and you can see 

one problem appears, I think, pretty dramatically. And that is it 

doesn’t look like the kind of studies that we’re going see research 

studies pushing the outer limits of theory and trying to understand 

truth. They’re not going to be all excited about looking through 

those studies so they’re not going to be engaged in that issue. Instead, they’re probably going to kind of look the other and go back 

to their research. Another thing you’ll notice visually is all those 

studies have to be FOIA’d to be accessed. 

So the point is the mainstream scientific community doing research is typically not going to be actively vetting and overseeing 

a lot of the regulatory science that the agencies are using for their 

decisions. Instead, it’s going to fall under the radar and fly on its 

own without that kind of social network that we depend upon for 

high quality science. 

There’s another feature to regulatory science that’s also extremely important—it’s not visual—and that is the actual nature 

of it. When we do regulatory science as scientists and as lawyers— not as lawyers, I’m sorry, when we, the scientists, do regulatory 

science, we are doing it essentially usually by trial and error. For 

a lot of the applied regulatory questions, there isn’t any grand theory into which we’re plugging. And a lot of times we don’t have a 

lot of empirical knowledge base to figure out what to do. So if we’re 

trying to figure out the effects of atrazine on animals—on frogs, for 

example—we’re kind of doing some trial and error, throwing some 

frogs in an aquarium, hoping we’re getting the right size, giving 

them the right concentration. And there isn’t anything beyond that. 

Now, that feature means that a lot of studies used for regulation 

are based on a lot of tenuous assumptions that can’t be validated, 

probably won’t be validated, and don’t even have theory to support 

them. So we take this fragile science not vetted by the scientific 

community, extremely tenuous and disconnected from the rest of 

mainstream science, and we throw it into the regulatory environment, where the stakes are high and there’s an awful lot of interest 

in what those tenuous studies say. 

That’s when the science advisory board becomes so incredibly important because it serves two important roles. The science advisory 

board sits there and looks at this regulatory science, first of all, 

often for the first time. It essentially represents hopefully a diverse 

sampling of scientists who are brought to bear—because they’re not 

ordinarily going to be involved in this stuff—to opine about the 

quality of this science, and we get a representative sampling of the 

scientific community that ordinarily wouldn’t be there. But we also 

1299

bring them essentially to filter out the major clinkers and to develop some consensus around the stuff that looks halfway decent. 

So the scientist will say, oh, you packed the aquarium with 30 

frogs. That’s too many. That study stinks, and in fact that study 

may have been deliberately stinky in order to get the result that 

was wanted. The science advisory board may say that’s not a reliable study or we weight that very lightly. But five versus seven 

frogs—we’re not exactly sure. It looks credible. We’ll kind of weight 

it. 

So they protect and buffer the research that appears plausible, 

while clearing out the clunkers. And this serves a vital function. 

Can’t help but throw the yin-yang in there—I’m sure it was foremost on all of your minds as well. I actually see the science advisory board very much as the opposite of what we see in adversarial 

notice and comment rulemaking. If we think about rulemaking and 

the notice and comment and judicial review process, it’s built on 

the idea that we bring all the affected people into the room and 

battle it out and duke it out, and the truth emerges. 

Science advisory boards, when done properly, conceptually at 

least, should be the exact opposite. You bring people that don’t care 

about the outcome, that are disinterested, that are open-minded, 

that are vigorous, and they get in there and roll up their sleeves 

and actually try to come up with some centrist answers or suggestions about what the science is revealing, at the same time throwing out the clunkers. So it serves essentially as an essential ballast 

to keep the decent regulatory science in place and keep it free from 

endless contests that could occur, to the numerous assumptions. 

We could argue ad infinitum about whether an aquarium should 

have five or seven frogs. The science advisory board can help buffer 

and insulate some of that, at the same time throwing out the one 

with the 30 frogs. 

Now, these things, I think, do serve conceptually a very vital role 

in rulemaking, but they come with a lot of attendant dangers just 

like the knife. The first is the very serious danger—and I’m sure 

it’s not news to any of you—of actually setting the science advisory 

boards up in a way to reach a predetermined end—stacking them, 

saying, okay, well I’m not really going to have a representative 

sample of scientists. Instead, I’m going to have the scientists that 

I think will give me the right answer. And a political official will 

do that, and we’ll have stacking going on. Stacking has been documented as a problem in the federal government. It’s a very serious 

concern, and I’m sure that we’ll hear more about it through the 

rest of the panel. 

A second danger is that these science advisory boards are going 

to engage in a lot of policymaking. Now, let me be clear. There is 

no way to squeeze the policy out of regulatory science. So science 

advisory boards are going to be doing some policy. When they decide how heavily a study on frogs should be weighted, that’s going 

to be based in part on its significance. If we want to be risk adverse 

about that particular issue, we might want to weight it more heavily if it indicates harm. If we’re risk tolerant, then we’ll weight it 

more lightly. It’s impossible to separate the policy out from the 

science. But if not done carefully, we can pay no attention to that 

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and end up giving science advisory boards enormous amounts of 

policymaking power that gets into very dangerous ground. 

A final risk that I’ll just raise is one that Al Teich raised, and 

that’s the ossification problem, the delay problem. We have these 

science advisory boards. Maybe we don’t need them all the time. 

Maybe the reason we put them in place is they create a one to two, 

maybe three or four-year speed bump on any regulation. And to the 

extent you don’t want regulation, that’s a speed bump that’s very 

much appreciated. 

So these are the justifications and dangers of science advisory 

boards. And then going through the literature—and let me say the 

literature, as I mentioned, is slim, but it’s outstanding. Sheila 

Jasanoff’s ‘‘The Fifth Branch’’ is a must-read. Mark Powell, who is 

here, with his ‘‘Science at EPA,’’ is another must-read. He doesn’t 

go into science advisory boards in as great a detail but it has enormously helpful things. 

When I looked at all the literature that existed at that level, I 

tried to create what appeared to be recurring themes in when 

science advisory boards were working well. I would suggest this is 

a project that should be continued by someone, which is exactly 

how do we develop a user guide for science advisory boards so they 

do these wonderful beneficial things without creating a lot of the 

costs? So essentially this tightrope walk—I over illustrated this so 

I’m going to slip it quickly. But the idea was, how do we keep the 

science advisory boards up on the wire and not have them fall? And 

the only thing catching them is poor, pathetic FACA. Only a lawyer 

would go to the trouble of Googling a picture like that by the way 

and pasting in all those terrible illustrations, but I’m using up my 

precious time to self-deprecate, so I’ll stop. 

[Laughter.] 

Ms. WAGNER. All right, to some general practice presumptions 

for science advisory boards. The first thing that screams to me loud 

and clear in the literature is one I wasn’t looking for, wasn’t expecting, which is that they serve the most helpful role when they’re 

consulted early in process, when they’re involved right at the getgo. And that occurs for a number of reasons. At least two main 

ones is they’re able to help the agency at that point. The agency 

is in a dialogue, asking some technical questions, getting some answers. We get to go back and forth, as opposed to positioning at the 

end of the pipeline, where they’re essentially reviewing the agency’s product and setting them up for judicial review. A second reason this is so important is it keeps the science advisory board away 

from the policymaking function. Involving them early gets them to 

look at technical issues, and then the agency can enter in with its 

own policy spin or policy issues on top of that technical input from 

the science advisory board. When they come at the end of the process again, a lot of policymaking can take place. 

A second principle has to be neutrality, and I think a lot of research has to go into how to actually do this. I would say, in contrast to the Academy, which has strong, strong incentives to do it 

right, that we need a lot more rigorous rules, written down rules 

on how agencies should do science advisory boards right. Just to 

throw something out there, I would suggest that we need a rebuttable presumption that no one can serve on a science advisory 

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board that has an affiliation with a special interest and maybe 

even an affiliation going back 10 years, including contracting roles. 

There’s an argument that we can’t find enough qualified people for 

SABs. This would certainly tell us whether that’s the case, but I 

think it’s extremely important to have very, very vigorous protections to make sure that we’re tapping into the scientific community 

to open-minded people who are going to be able to collaborate and 

look at the issues without a lot of predisposition. 

Also, transparency is critical. I’m not sure that actually requires 

open meetings all the time. I don’t really know, but it is absolutely 

critical to make sure that there’s a window inside this process so 

that it can’t be distorted. 

A third principle is that, to the extent possible, the Science Advisory Board needs to understand its role is primarily technical, realizing that there’s a big fuzzy overlap. And a lot more attention 

needs to be given to the charges given to science advisory boards. 

Tell us, science advisory board, where the science ends. Tell us 

when you really can’t reach a consensus on what this pup study 

means or how to weight it because that kind of input is extremely 

important. It’s a flag the policy then needs to enter, at least at that 

level. 

A final sort of good practice presumption is to come up with some 

kind of formula or way of thinking about when we actually need 

these things and when we don’t. My suspicion is that we tend to 

overuse and under use them. I think we clearly under use them in 

some areas where the agency tends to use a lot of parochial evidence or is captured. Natural resources may be an area where 

science advisory boards could actually help a lot—clean up some of 

the science that goes on inside the agencies. On the other hand, 

there may be a lot of dangers in overusing, as I mentioned, with 

ossification, so we need to come up with some sort of formula for 

when benefits of these things actually will outweigh their costs in 

terms of several years and maybe a couple million dollars and 

think through those issues. But it’s important, I think, to identify 

in advance how we know when we have benefits outweighing the 

costs and not just simply to fly by the seat of our pants. 

So, for reform and for the future, I think the one thing I learned 

from looking at science advisory boards is that there’s an awful lot 

of important empirical research questions that need to be asked 

and answered about these things and a lot of issues that are still 

in very tentative positions given how long we’ve had them and how 

important they are. So I think we need to spend a lot more time 

on exactly the rules or who should be on them. We need to talk 

more about exactly the kind of transparency that they need. And 

also this may lead to some legislative and regulatory changes. 

One is with regard to OMB’s Peer Review Bulletin. I’m not sure 

what purpose that serves beyond the science advisory board role. 

So it may be an apples and oranges comparison. But if the OMB 

bulletin is essentially trying to do the same as peer review—I mean 

as science advisory boards—then this analysis, I think, suggests 

they got a lot of things wrong and may need to be revisited. They 

envision a process where peer review comes at the end of the process. The literature suggests that’s a time where there’s an awful 

lot of intertwined policy questions, and that could lead things awry. 

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It also suggests it’s not a time where the agency is receiving constructive advice and improving the way it does things, but instead 

could be relatively detrimental. 

Also, I would suggest at a legislative or regulatory level what we 

really need to do is come up with presumptions or principles for 

these science advisory boards. FACA doesn’t begin to address the 

specific needs that science advisory boards have, and I think to 

make these things work properly and not go into some of the costs 

and dangers, we need to come up with much more specific guidelines for how they can be used. So with that, I’ll close. 

[Applause.] 

Mr. ROSENBERG. Thank you very much, Wendy. Our next panelist to speak will be Professor Richard Parker. As I indicated, he 

is a professor of law at University of Connecticut Law School, 

where he teaches and writes in the fields of administrative law, environmental law and policy, and international environmental law. 

Richard has served as an assistant general counsel in the Office of 

the United States Trade Representative and special counsel to the 

deputy administrator to the United State Environmental Protection 

Agency, where his responsibilities included assisting in the supervision of a comprehensive review of agency science policy. He currently co-chairs the ABA administrative law section’s committee on 

e-rulemaking and is leading the 21st Century Rulemaking Project, 

a collaborative, interdisciplinary research project, which is exploring ways to use information technologies to strengthen agency 

science and to improve transparency in complex agency rulemaking 

initiatives. 

Richard? 

RICHARD PARKER. Okay, thank you, Mort. It’s a pleasure to be 

here and see so many familiar faces. It’s also a bit daunting to look 

around the room and realize that most of the familiar faces in this 

room have a lot more experience in administrative law than I do. 

I’ve been studying rulemaking for about five years, and I think by 

the standards of this room that makes me probably a novice. But 

to try to compensate for that, I have gone and tried to talk with 

people in agencies about how science advisory boards actually work 

to try to draw on their experience. And the two agencies that I 

have focused on so far are the National Academy of Sciences and 

EPA. And I take Wendy’s point entirely that they’re very different 

bodies, but I think a science advisory board raises the same—similar issues of independence, of objectivity, of bias, of expertise, and 

so forth. So I think that they actually work in quite different ways. 

And I think some of the comparisons and differences between them 

will be instructive. 

So what I’d like to do is just to talk with you a little bit about 

my findings looking at how science advisory boards actually work 

and ask in each case, how do they work? What are they? What are 

their problems, and how can they be improved? I start with the 

premise that they basically are a good thing, like Wendy said, but 

that they have certain problems. 

There are four advantages basically that the science advisory 

boards have. First, they are relatively independent in the sense 

that they are not hired by the agency, and they’re also not supposed to be, you know—in the case of science advisory boards anyVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 01302 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230
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way—in league with stakeholders or financially beholden to stakeholders. So that’s one benefit. Secondly, they have access to a 

broader range of expertise than you can often find from any single 

consulting firm, for example. If they’re done well, you either have 

neutrality or you have access to a diverse and balanced set of viewpoints and scientific perspectives—again, the advantages of a panel 

as opposed to an individual firm. And finally, they ought to be at 

least relatively transparent, although we’ll see the pros and cons 

of that as we go along. 

At the same time, they could fail, as Wendy points out. They 

could smuggle political values into scientific studies. They can disintegrate into quarreling factions. They can end up with nothing 

but uncertainty. They can waste time and money. So I think, however, you have to compare reality with reality. And my guess is 

that a lot of the circumstances which produce these failures in 

science advisory panels are also going to produce a lot of problems 

under any other alternative arrangement. So in my view given the 

advantages, the right thing to do is to fix the problems or at least 

try to fix the problems and not ditch the concept. 

So I guess that’s backdrop of praise for the concept. Let’s turn 

to a critique of how they actually work. In each case, the questions 

will be, how do they work, what are their shortcomings, and how 

can they be improved? And right away we raise—we face some 

issues. 

The first advantage of science advisory panels that I mentioned 

is access to expertise. In the case of NAS, the National Academy 

of Sciences, there’s no question that they have unparalleled prestige and the ability attract top talent. At the same time, there’s— at least as far as I’ve been able to tell from my talks with people— not really a formal public nomination process the way there is in 

the agencies so the public can comment on a shortlist. It’s more of 

a very informal consultation with a network of nominators, pretty 

much back channel. There are some criticisms out there. Again, I 

emphasize that I don’t have a view of this really. I’m just reporting 

views that I’ve heard that it operates as kind of an old boy network 

with the same people, you know, reappearing time and again and 

other prominent scientists, at least as measured by their publications and presence in symposia, perhaps not represented. 

EPA is quite different in the sense that they also have their informal network. They often consult with current members of their 

existing science advisory boards—another thing which kind of propagates perhaps an old boy network. But they also have this public 

nomination process. Here the problem is that, of course, a lot of scientists don’t read the Federal Register and neither do their colleagues. However, corporate lobbyists do, or their paralegals do, 

and so you already have this tendency, I think, for imbalances to 

be created. 

So I just want to suggest that perhaps we should consider a more 

proactive way, and I only raise this as an issue, which I throw out 

there for the purpose of provoking discussion and hopefully some 

insight. What about having a science registry? What about canvassing science and engineering departments around the country, 

scouring the literature, talking to heads of professional societies? 

To some degree that’s already done now, I’m sure, and I don’t want 

1304

to suggest that it’s not being done. But do it systematically and actually develop a database of expertise in a wide variety of areas 

that are relevant to rulemaking. In that database, you could also 

consolidate a lot of your key information on qualifications, on conflicts and predilections, which would give you a leg up as you turn 

to the conflict of interest and the bias screening process. It would 

greatly reduce the delay and the marginal costs of new panel formation. And I think you could also—there’s already sort of a basis 

for it in GSA’s current database. So I just want to suggest that as 

a possibility. 

The reason this is important is because time and again you hear 

claims that, if you don’t relax the conflict of interest rules, you 

won’t be able to get the expertise. Or if you try to balance the 

panel, you won’t be able to get the expertise. We have a terrible 

shortage of expertise, we’re constantly told. And it seems to me, if 

that’s the case, no argument based on the shortage of expertise 

should be accepted until we are truly confident that we’re doing all 

we can to cast the net as wide as we can and as skillfully as we 

can. 

Okay, the second thing that I’d like to talk about is the whole 

issue of independence, and independence here is a code word for 

absence of financial conflicts of interest in a particular matter with 

some entity that would be affected by the outcome of that matter. 

And right off the bat we have a bit of an issue, and perhaps 

Wendy’s distinction is an answer to this problem, but I’d like to 

raise it anyway. 

Is government appointment in itself a fatal conflict to the independence of a science advisory panel? The National Academy of 

Sciences has taken the quite firm view that it is. And in fact, even 

before the recent scandals over the packing of science boards, back 

in 1997 when the NAS was told by the Court of Appeals to their 

surprise that they’re actually subject to the Federal Advisory Committee Act, FACA, they went straight to Congress and said, we will 

not continue to do reports for you if you don’t amend a couple of 

things about the way FACA applies to us at least. And one of the 

things they insisted be amended is the requirement that science 

committee members be appointed by the government. They said 

that’s fatal to their objectivity, and they couldn’t live with it. It was 

a deal breaker. And within days Congress had passed the law, 

which became Section 15 of FACA, which basically exempts them 

from that requirement. 

This issue underlying their concern, of course, came to a boil in 

2004 when the Union of Concerned Scientists issued a letter decrying this administration’s stacking of scientists. They claimed that 

highly qualified panelists had been dropped by key science panels, 

while scientists working for industry subject to regulation had been 

appointed. This letter was signed by 49 Nobel Laureates, 63 National Medal of Science winners, and 171 members of the National 

Academy of Sciences. So I think it stands for a pretty clear expression of the science community’s point of view that there’s a real 

independence problem here. 

That doesn’t necessarily mean perhaps that you can’t have government appointment of science. But perhaps the time has come to 

consider at least building in some safeguards such as, for example, 

1305

requiring that appointments be made off a roster that is approved 

by the National Academy of Sciences or by the AAAS, what have 

you—another case basically for a science registry. But it would 

check at least the tendency for politicization that we’ve seen in the 

last few years. And by the way, they were very clear in that letter 

that although the Bush administration’s actions have been extreme, they are not—it’s only a matter of degree, that these problems are longstanding problems. 

But this question of government appointment is unfortunately 

not the end of the problem. There are also these gaps in coverage 

of conflict disclosure rules, problems with dollar thresholds, and 

the problem with disclosure rules not looking back very far. And 

let me, having rattled those off, talk about them in a little more 

depth. 

One of the things in the conflict of interest area that immediately 

jumped out at me, at least when I looked at them, is that basically 

disclosure of a conflict of interest and defining something as a conflict of interest creates a fairly strong presumption that the person 

should be disqualified. That presumption can be overcome if they 

have unusual expertise that is relevant to the job of the panel and 

that overcomes, you know, the problem of their conflict. But it’s a 

presumption of disqualification basically. And furthermore, the dollar thresholds for financial affiliation are ridiculously low. I think 

it’s $200 for income in a reporting period and a $1,000 of assets—

(unintelligible). No self-respecting consultant is going to let himself 

be bought for $200. You know, come on. 

[Laughter.] 

Mr. PARKER. But the result of a combination of low thresholds 

and a presumption of disqualification has been basically a search 

for loopholes or gaps, and that is what has happened in spades. We 

had to begin with the wholesale exclusion of ad hoc consultants to 

standing committees. Now, ad hoc consultants are people who have 

very specialized expertise in the particular rule or study that’s 

being considered. So even though they’re ad hoc, they may be the 

most influential scientist in that room, and yet there’s no—for that 

particular report—requirements, as I understand it, for them to 

disclose conflicts of interest. 

Secondly, you have a proliferation of representative members. 

Now, this is something that I had never heard of outside the context of regulatory negotiation. I never heard of it in the context of 

science advisory committees until I started doing research for this 

paper. But representative members are basically members who are 

put there to represent particular interests, and therefore they don’t 

have to disclose conflicts because the theory is that they’re just 

there to represent interests, and so we don’t expect neutrality of 

them. 

The problem is the Government Accountability Office (GAO) in 

a recent report found that several agencies are comprising panels 

of nothing but representative members and then asking them for 

science advice. Furthermore, their conflicts aren’t disclosed and in 

many cases, you know, they are asked questions which don’t have 

to do with their client’s interests, but have to do with what the 

agency should do or what it should believe about a particular role 

1306

of science. So this is a problem. This is an abuse that the GAO said 

ought to be corrected, and I totally agree. 

Then finally you have proliferation of waivers basically, at least 

in some agencies. GAO found that in one agency, NIH, there were 

committees that were comprised of virtually nothing but people 

who had had waivers. So you have this—now the problem is that, 

again, you have a very draconian presumption combined with a low 

threshold, and so it creates this search for loopholes. My view is 

that perhaps we ought to relax the consequences of disclosure of 

conflict—treat it more as a balancing thing than as a disqualification thing, but really have a strong disclosure requirement so that 

people know where scientists are coming from. In any case, the current status quo is not ideal. 

Another problem with the low threshold that I just want to 

quickly mention is that, while it seems strict, it’s actually not very 

strict because these current rules don’t require the disclosure of 

amounts over that threshold. So it doesn’t distinguish between 

somebody who spent 20 years, you know, working for Exxon and 

being immersed in the Exxon point of view and somebody who got 

$300 from Exxon to write a letter. And so as a result, these thresholds aren’t very helpful. And so one of the things that we might 

consider is amending that, and I’ll talk about how in just a second. 

One last problem is the conflict of interest inquiry doesn’t look 

back very far. And this is another, I think, response to the presumption of disqualification and the low thresholds that cause this 

search for loopholes. Form 450, which is the government-wide form 

that is used to disclose potential conflicts of interests looks back 

only one year. The National Academy of Science’s doesn’t look back 

at all. As I said, under NAS rules, if a scientist ended a 20-year 

employment relationship with Exxon yesterday, he’s now technically eligible to serve on a carbon sequestration panel. Okay, contrast—academic journals, as I understand it, often require disclosure of affiliations going back five years, so that gives you kind of 

a benchmark. 

Again, there’s an empirical question. Could you populate panels 

with a longer look back period and still get the expertise you need? 

It seems to me even if you couldn’t, you ought to be requiring disclosure of the affiliations even if you don’t say that it means a disqualification. 

Just a few points to sum up the conflicts business, basically what 

I’ve said is that we should close the gaps in disclosure requirements. We should raise the amount figure thresholds to some 

meaningful figure, but require reporting of at least approximate 

amounts over the threshold, say from 5,000 to 10,000, from 10,000 

to 50,000. And then you should look back at least for 5 years for 

guidance as to perspective, balancing of perspectives. And look also 

at the duration and frequency—consistency of affiliation, not just 

a question of whether they did or not. 

Let me move very quickly through the remaining slides because 

I know I’m running out of time here. Bias to administrative lawyers means an unalterably close bind that causes recusal. Now, 

bias in the science context, as I understand it, means something 

different. It just means a predilection, and in that context the realVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 01306 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230
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istic goal of panels is not to ensure the pure absence of bias in 

panel members, but to ensure an overall balance of perspectives. 

The problem is that balance isn’t often achieved in practice. In 

fact, some empirical studies have shown that science panels are 

grossly imbalanced in many cases, sometimes professionally and 

often in terms of ideology or interest, affiliation, and point of view. 

And in fact, we see basically ‘‘a don’t ask don’t tell policy’’ with regard to ideology, except for in a couple of cases of abuse. And it’s 

commonly assumed that, you know, we shouldn’t ask what a person’s ideology is, but I wonder whether that expects too much of 

scientists, whether that asks them to be somehow in the world but 

not of the world in an unrealistic way. Wendy and I had an interesting discussion about that. I’m not sure, but perhaps it’s time to 

reconsider that. 

Again, the idea is not, in my view, is not to get purity of objectivity on the panel, but to get a reasonable balance. And we can 

do a better job of that, and the GAO said we could do a better job 

of it. And one reason why we have such poor balance is that only 

the National Academy of Sciences and one committee at EPA even 

have a systematic process for interviewing candidates for their perspective before they’re selected. 

One last slide on transparency and then we’ll go. Transparency— is more transparency better? FACA and the agency process presume that it is, and here I’m talking about transparency in the proceedings of the committee themselves. The NAS, again, strongly 

disagrees. And the view of the National Academy of Sciences is 

that you need closed meetings to allow people to get off their positions without embarrassment, to make compromises, to make concessions on the science, and that without that people will lock 

themselves in stone. It also promotes objectivity by making it more 

difficult for industry—perspective employers or past employers of 

people on the panel to figure out what they’re saying in the meeting. Obviously that’s not the premise of agency practice, which is 

quite the opposite. So I think that difference is instructive and 

merits further consideration. 

Quite clearly, Wendy is right that there are problems of cost, 

problems of delay, problems of adversary science, even on science 

panels. But I hope that I’ve been able to focus your attention on 

at least a few of the advantages and on the ways that they might 

be improved. Thank you. 

[Applause.] 

Mr. ROSENBERG. Our next speaker will be Jamie Conrad, who is 

an assistant general counsel for the American Chemistry Council. 

He has primary legal responsibility for legal reform issues, including regulatory enforcement and administrative law, and he provides legal and policy counsel and support of the Council’s regulatory, legislative, and judicial advocacy in the areas of security 

and science policy. Jamie spent eight years in private practice with 

two major law firms in Washington, where his responsibilities encompassed regulatory advocacy, counseling, litigation, and transactional work under the major environmental statutes and numerous state laws. Jamie developed and edits the ‘‘Environmental 

Science Deskbook,’’ and his writings on legal subjects have appeared in such journals as the Administrative Law Review, Kansas 

1308

Journal of Law and Public Policy, Environmental Health Perspectives, EOI’s environmental report, and the Bureau of National Affairs (BNA) environmental report. Jamie? 

JAMES CONRAD. Thanks, Mort, and let me add my thanks to the 

committee for convening this group and looking at these issues in 

this kind of a forum, which I think is probably as best suited as 

you can do collectively to explore the many complicated issues associated with the use of science in regulation. I realized—you may 

not have noticed this sitting where you are —but the speakers 

seated in the chair here can’t see the other—whoever is 

presenting’s slides unless they have a neck like an owl—you know, 

twists around. So I’m going to contribute to that problem by making them turn around to watch slides that they don’t have copies 

of. 

When I was asked to do this, I thought, well, the first thing I’ll 

do is I’ll get out my copy of Sheila Jasanoff’s great book ‘‘The Fifth 

Branch’’ and look at it. And then I’ll sort of think about, well, what 

theoretical contribution can I make to the law and literature on the 

science advisors as policymakers. And as I read a little more about 

the social construction of science, I thought, well maybe I’ll stay 

away from theory and just deal with practice. And so I’ll make 

some observations essentially sticking to my knitting—but about 

science advisory panel matters and issues that I’ve confronted in 

years doing regulatory work. And actually as I thought about them, 

there are some theoretical issues that kind of weave them together. 

And really what I’m interested in is the degree to which science advisory panels make clear and articulate in words what it is they’re 

doing so that other people can evaluate how they came to the conclusions that they came to. And a related issue is, how is that interested parties can have some way of engaging the advisors or 

otherwise contributing to their own deliberations? 

And I’ll do this really just by talking about—depending on how 

you count them—either three or four panels—EPA’s Human Studies Review Board, which is a brand new organization—just went 

into business this year—two different activities of the National 

Toxicology Program—Report on Carcinogens, which goes back to 

the ’70s, and a more recent project that looks at risks to human 

reproduction—it’s a much newer and, I’ll suggest, more modern approach—and then last, the American Conference on Governmental 

and Industrial Hygienists. You will only see the acronym henceforth so memorize those words because that’s what ACGIH stands 

for. 

All right, Human Studies Review Board was created by a midnight rider without benefit of legislative hearing or oversight. Just 

to show that these things are evenhanded, Senator Boxer did get 

a rider attached to a EPA spending bill mandating the creation of 

a Human Studies Review Board. And that group began in operation this year as a FACA panel. Its charge is as written on the 

slide. Essentially it has two jobs—three. One is to look at research 

proposals involving human subjects, which they haven’t really 

quite gotten to yet. The other is essentially going to phase out—

looking at completed—well, the other is looking at completed studies after they’ve been done, including ones that were done in the 

past, which is sort of what they’re consumed with doing now—is 

1309

kind of getting though the backlog of studies whose proposals they 

hadn’t first reviewed. And then third, they will advise EPA upon 

request about how it can improve its own regulations and programs 

for human subjects research. 

But what I’m most interested in and what they’re really consumed with doing now is dealing with studies that have been done 

that EPA is now considering whether or not to rely on in re-registering pesticides. And there are many other applications of 

human subjects research as well. But what’s characteristic of all of 

these is essentially some company did a study and submitted it to 

EPA either by law or because they chose to. EPA then looks at the 

study, comes to some conclusions about its scientific and ethical 

merits, gives that to the human subjects review board, which then 

meets in public session to decide—make judgments about the scientific and ethical values of the study. 

Well, the entity who did the study is essentially in the FACA 

paradigm. And as the rules of this board have been set up, which 

I have the cite there to, the proponent of the study is essentially 

treated like anyone else who walks in off the street and would like 

to make a comment to the board. The written materials the board 

is going to see are released in advance but in some cases only a 

few days in advance. And if you want to respond, you get, in the 

case of the meeting in April, a day to respond. And then you have 

these public comment sessions, which are towards the end of the 

day, and you get five minutes. 

And my concern with that is that in this role where a science advisory panel is essentially serving a kind quasi-adjudicatory purpose—they’re evaluating one study and deciding whether this study 

should be approved, and I recognize they’re looking at EPA’s characterization of the study, but still it’s a particular study. The people who know about that study and why it was done and how it 

was done ought to be given a sufficient opportunity to first of all 

see what it is that will be put before the board so that they’re dealing with essentially the same body of knowledge and secondly have 

time both in writing and in oral presentations to answer the 

Board’s questions and to otherwise explain things. 

And in fact what happened in the meeting of the board in its 

first meeting in April—and I think this is a sort of paradigm example of how well a board can be put together in terms of the level 

of expertise and seriousness of the folks on the group. But the chair 

essentially said—after the board sat around saying, well, what 

about this, and somebody in the audience kept going like this. They 

finally said, ‘‘Do you know the answer to this question?’’ And the 

fellow said, ‘‘Yes.’’ And so they created a process where, if they had 

a question and they thought that the representative of the company knew the answer, they would ask that person if that person 

had an answer. And that person couldn’t ask them questions. I 

mean, it wasn’t, you know, a trial type procedure. But they in essence kind of created a process where they could get technical 

input from the study’s proponent and ended up giving that person 

20 minutes to talk about their study. And some studies they approved, and some they disapproved. 

Second case study—National Toxicology Program (NTP) decides 

what’s a known or reasonably anticipated to be a human carVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 01309 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230
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cinogen. It’s essentially a project run out of HHS involving other 

agencies. The National Institute of Environmental Health Sciencs 

(NIEHS), which is spelled out there, administers it. They’ve been 

doing these since the ’70s. This is kind of a rare bird in that both 

federal and state law actually are hard linked to the outcomes of 

the NTP reports on carcinogens, which is the process I’m talking 

about here. If something is labeled a carcinogen in a report on carcinogen, it goes on the OSHA HazCom standard, it goes on Prop. 

65. As a result, these studies have actually been held reviewable 

in three different cases, although in each case, the judge referred—

deferred to the program. There have been 11 of these reports thus 

far. There have been three lawsuits, as I just mentioned, and six—

count them, six—information quality requests as of a year-and-ahalf ago. We’ll see why in a moment. 

This process began—because it began in the ’70s—as a very internal sort of thing. NTP announces that they’re going to do a report on carcinogens, and lists the chemicals that it’s concerned 

about. At that point, you can send in information that you find is 

useful. At that point, the doors close, and the staff develops a background document, which in the course of this entire process will 

never change. It’s then reviewed by a group of scientists, which historically was the same people who just did the report and decided 

what chemicals would be reviewed. There is now a separation 

there. That group doesn’t write a report. There are kind of summary minutes of its deliberations. It goes to a second review group 

of scientists from the interagency process that makes up the NTP. 

Again, some minutes, but no report. It then goes for a kind of last 

peer review to another interagency group made up of high-level 

agency scientists. Now suddenly there’s an opportunity to weigh in 

on the background document and the previous deliberations to the 

extent you can glean what has happened in them. Again, historically not much notice. Again, you get five minutes, and this time 

it really is five minutes. They address about a dozen of them in the 

course of a day. And when they’re done with those, there’s again 

a sort of a transcript, but there’s not a report. All this then goes 

back to the staff, who write a whole new document called a profile, 

which goes to the secretary, and he or she signs it. 

Now, I submit that’s kind of an old fashioned process back from 

the days that it was sort of seen as the government’s role to decide 

what was bad for you and to regulate it before there was more of 

a notion of what Peter has explained has become kind of more of 

an interactive or dialogic gloss between agencies and interested 

parties. OMB wrote a letter to HHS saying, gosh, you’ve been hit 

by six Information Quality Correction Requests, more than any 

other department—activity of the federal government. Perhaps you 

could adopt some processes to try to make it clear what you’re 

doing and thereby heading off correction requests as well as perhaps improving the process—the decision making process as it goes 

along. And so OMB made a variety of suggestions, I’ve listed here. 

It’s not clear—I don’t believe—that there has been a final decision 

on the part of HHS which of these it will do. I think that this last 

idea of a peer review of the draft profile itself—the things that’s 

written at the very end—they may adopt. 

1311

Another approach, which I will hesitate to describe to you here 

is NTP’s more recent effort. It’s Center for the Evaluation of Risks 

to Human Reproduction. A couple of differences—they have an expert panel. You can comment on who ought to be in that expert 

panel. They can be drawn from outside of the NTP. So there’s a 

chance that the experts will actually be much more expert about 

the particular topic being discussed than is the case with the reports on carcinogens. There are advanced meeting notices and draft 

reports made available so that people can comment on them. And 

the reports themselves get revised as the process goes along. It’s 

NTP’s own process so it’s not kind of being imposed necessarily by 

a third or external party, and I’d suggest it’s probably a better way 

to do the reports on carcinogens. 

My last topic—ACGIH—not really an advisory panel in the traditional sense, but serving some of the same notions—a bunch of experts setting values which the agencies can use. Before OSHA, 

ACGIH was the predominant means by which values were set for 

safe exposures to substances or conditions in the workplace. And 

so when OSHA went into effect, they just adopted all the Threshold 

Limit Value (TLV) that were on the books, which made a lot of 

sense because, as we’ve seen, it takes OSHA a long time to set 

standards. And that was fine. But some other things are somewhat 

more problematic—the OSHA HazCom standard automatically by 

a labor interpretation incorporates the newest TLVs as they come 

out. TLVs are used as a benchmark of what constitutes a violation 

of the general duty clause of the OSHA act. And other agencies use 

TLVs as authoritative source when they’re writing rules. 

The problem with that is that while ACGIH used to be a fairly 

open process, that changed in the 1990s. They got a lot of money 

from NIOSH, and when that stopped they were faced with whether 

they should go out of existence or keep in business. They decided, 

like all bureaucracies whose first imperative is self-preservation, to 

stay in business, and they do that essentially by selling the TLV 

documents. That’s now their major source of revenue. They’re no 

longer an open process. They basically do these all themselves and 

then sell them. They don’t do research. They don’t peer review 

them. And most, I think, problematic is that many of the officials 

on the agencies who will use these reports serve in these ACGIH 

committees. And this is being litigated, not by us, but there are 

folks that think this has kind of gone a little beyond the fairness 

if not the pale. 

And there are really, I think, two solutions to this. One is that, 

in processes like this that are essentially closed and being motivated by kind of profit motive, it’s probably appropriate for agencies not to defer to these documents and to incorporate them automatically by reference. The other is that perhaps this group could 

become a real consensus organization, in which case there would 

be a federal statute—the Technology Transfer Act—that justifies 

agencies relying on them. That’s it. 

[Applause.] 

Mr. ROSENBERG. Our final speaker will be Fred Anderson, who 

is a partner in the Washington law firm of McKenna Long & Aldridge. His practice involves strategic corporate counseling, regulatory affairs, litigation enforcement and crisis management. His 

1312

experience is especially concentrated in energy and natural resources, science and technology, and the environment. His practice 

involves regular engagement with executive and legislative branch 

agencies. He works with the Environmental Protection Agency, 

major federal departments and executive offices such as the President’s Council on Environmental Quality, and the President’s 

science advisor and the Office of Management and Budget. He 

serves as a member of the Executive Committee of the National 

Academy of Sciences’ Committee on Science, Technology and Law, 

and is a member of the board of Atmospheric Sciences and Climate. 

He was both a member and a consultant of the Administrative 

Conference of the United States, and with the support of a dozen 

major scientific institutions, he filed an amicus brief in the United 

States Supreme Court on behalf of 58 Nobel Laureates and other 

prominent scientists in supporting the National Academy of 

Science’s efforts to overturn an unfavorable lower court opinion applying the Federal Advisory Committee Act to academic academy 

committees. Relevant here, he is a former dean of the American 

Law School at American University here, and he was the first fulltime president of the Environmental Law Institute. 

Fred? 

[Applause.] 

FRED ANDERSON. No slides. Life is short, the panel is long; I’ll 

be brief. If brevity is the soul of wit, I’ll try to be very witty. I think 

today that a lot has changed with respect to science advisory panels, that there is a bit of a transition going on, a change in their 

role. I think there is grounds for asking today to what extent are 

the panels of science advisors to science courts? To what extent are 

they seeking to be science legislators? And are they being, some of 

them, science watchdogs in our era? 

I think that science panels are hard-put. I will defend them to 

this extent: they’re hard-put when they have to advise their agencies and the federal government. I think scientists, in a collaborative, negotiated consensus enterprise, like panels indeed are at 

their best when they have very broad mandates, or even when 

they’re self-convening. I think of the two biotech or biotechnology 

Sillimore (phonetic) conferences years ago, even of the two search 

for extraterrestrial intelligence conferences that scientists self-convene. Just to be clear, I think that it should be clear now that the 

backdrop is that science advisory panels to the federal government 

are advisory only. I think that’s quite plain from the Federal Advisory Committee Act legislative history, from cases like American 

Petroleum Institute against Costle, or Lead Industries Association 

against the EPA, or Corrosion Proof Fittings against EPA, and I 

would only say a couple of things that I think are illuminating to 

me. Perhaps you’d like to hear them. 

I had a look at the Red Book produced by the National Academy 

of Sciences in 1983. It’s sort of a bible about to be revisited by the 

academy all these years later. But here is what the panel said 

about risk-assessment, which is to my mind the arena in which 

science uncertainty is the greatest and the technical issues the 

thorniest. A scientific review panel’s critique about agencies’ risk 

assessment should not be binding. That is, the agency should not 

be obliged to revise its risk assessment if the panel regards it as 

1313

deficient. Agencies have a responsibility to state the basis of their 

actions and the authority for their actions must remain their own. 

That is the reverse direction from a panel years ago speaking about 

risk assessment. And I particularly liked—I was reading the article 

Wendy cited—again, the year 2000 Law Review article by Lars 

Noah, reading the footnotes, glancing occasionally at the text, and 

there he said the following: ‘‘With regard to specific risk assessments for particular rulemaking initiatives, some peer reviewers’’—and I take that also to 

include panel members—‘‘predictably will disagree about how best 

to interpret ambiguous research or resolve uncertainties. For that 

reason, agencies should not feel hamstrung by failures to convince 

their expert advisory panels. Just as an editor for a scientific journal retains the prerogative to ignore comments provided by a referee, federal agencies must not cede their power to pursue rulemaking to independent and democratically unaccountable peer reviewers.’’ I think that’s interesting. Today I think there is a broader claim, 

though, being made than that panels are advisory only. I just detect a whiff of a stronger assertion, a more muscular assertion that 

shared decision-making should be the model, verging on declaring 

the regulatory science, with a whiff of the science court coming in 

there, of a strong role in standard setting and even veto power 

based on science over what an agency proposes to do. I don’t have 

any doubt that it’s within a science advisory panel’s purview or 

ability, should I say, to reverse the burden of proof and get a court 

to think more under even the arbitrary and capricious standard of 

judicial review about what an agency’s done. I think that the influence of panels is strong, but I’m wondering if it isn’t going a little 

too far. 

The example today is CASAC. That Old Testament prophetsounding acronym stands for the Clean Air Science Advisory Committee of EPA. Rogene Henderson just wrote to the agency. She’s 

been a member—a very influential figure in CASAC history. Several CASAC members appear to believe that they’re, quote, ‘‘approving’’ proposed standards rather than giving advice and recommendations. What’s going on is that the EPA has had an internal review that hasn’t finalized a decision but it’s thought instead 

of giving a proposed National Ambient Air Quality Standard to 

CASAC for its sign-off, what they call closure—I always thought 

that term better applied to personal and emotional issues—but closure between CASAC and the leadership of the agency is sought 

based on a staff paper, and then a rule is proposed and there is 

public comment and the adversarial process takes over from there. 

But the idea now is to issue an advanced notice of proposed rulemaking covering a policy assessment document for air quality 

standards, and that document would go to the public and to 

CASAC, the science advisory panel, at one and the same time, and 

that is being viewed as undermining the process, but that’s one of 

the arenas in which the debate is being fought out, in addition to 

questions about who’s appointed to panels, whether or not they’ve 

been vetted for bias and conflict of interest and so on. Why is this 

going on? I think there are several reasons. One I think is a product of our era, the glorified here and now politics. There is a sense 

1314

that the Administration doesn’t listen to scientists as well or as 

long or as often as it should, shouldn’t pack panels, and so there 

is an alert, if you will, a kind of a yellow light flashing in the 

science community about the Administration’s approach to science. 

There may also be a bit of a resurgence to the New Deal technocratic model where we have such complicated technical issues that 

it’s hard even for an EPA administrator not to ask for the scientists 

to give the definitive opinion because the issues are so tough. 

But I want you to at least consider this. I don’t say you should 

swallow it whole, but I’ve been thinking that maybe some of the 

reforms that have gone on in recent years in the science advisory 

process may have had some perverse, as well as some healthy, impacts. The National Academy of Sciences, the Science Advisory 

Board at EPA, and others, have made their processes more formal 

and proceduralized. There’s FACA itself and the Academy FACA 

amendments refer to, and then around 2002 the Science Advisory 

Board revised its procedures. And all of this proceduralization is 

driven by lofty principles—democratic legitimization, due process, 

transparency, public participation, impartiality. And so panels have 

been constituted to be more neutral, to have more balanced interests represented, more public input through open-mike sessions. 

And so to my eye, over the 35 years I’ve been doing this, the meetings have begun to resemble public hearings to a far greater extent 

than they did a couple of decades ago. 

I think, too, there is a risk that scientists with too much experience, whose research represents part of what the consensus will 

have to be about, are being excluded I think too hastily from panel 

service, because I think that type of expertise is needed. Otherwise, 

you select scientists like you select a judge, and then they hear the 

evidence and then they opine. And, you know, part of the problem 

is when the scientists, who weren’t all that informed really to begin 

with, or else they have a bias or too great an involvement, when 

they start hearing the evidence they begin to think that they—at 

least it appears sometimes to me that they have seen the issue 

anew and afresh, not through the head of an agencies eyes but 

through a scientist’s eyes, and think that they may actually have 

a clearer picture of what should be decided than the agency itself. 

So, I also think that this process of creating a hearing-like atmosphere, which by the way, to pay a back-handed compliment, 

means that public science advisory panels are being more fully attended. There are larger turnouts, there are longer public sessions, 

there are more carefully prepared presentations and they’re more 

diverse, and more information gathering goes on from the panel. 

So, with a result that I think that they (inaudible) type of behavior 

that this rewards on part of stakeholder or panelists alike is that 

those who are more comfortable speaking to a large audience, those 

who are more verbally facile than perhaps some bench scientists 

are, are more at home and tend to hold a sway, which might not 

have existed 20 years ago when different rules applied. 

If the public part of the panel meeting means that the panel feels 

like it is part of the hearing process or a democratic information 

gathering process, then it may really appear like an alternative 

public forum, and that may account—just might possibly account 

for some of the EPA’s behavior in trying to go to its science adviVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 01314 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230
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sor—its science advisor is CASAC—about the same time it goes to 

the public because it sees all of that as part of one ball of wax. 

What to do about it? I don’t know that I’d want to recommend 

benign opacity, but I might recommend something like more confidential discussions, fewer public sessions. It’s finding a way to 

permit panels with limited time and budget to work more with 

each other, to bond, to lay a foundation for a consensus, to shed 

public positions, minimize opportunities for grandstanding, and 

most of all, give space for effective, scientific peer pressure to work. 

I think that it will emerge that someone’s view is foolish—that that 

will emerge a lot quicker with full disclosure. I certainly agree with 

others who have said that full disclosure of one’s background and 

involvement—also find, sitting at some of these meetings, that disclosure occurs fast enough. It’s in the warp and woof of the matter 

before the committee, and it will become quickly apparent what a 

person’s leanings are and whether or not they can support that, scientist to scientist, in an informal setting. 

And that is all I have to say. Thank you. 

[Applause.] 

Mr. ROSENBERG. Let me first quickly ask if any panelists want 

to respond or make other remarks. If not, I’ll take questions from 

the audience. 

PETER STRAUSS. The panel is on scientific advisory boards in 

rulemaking, and as I heard what you were talking about and saw 

your examples, it seemed to be largely about either proceedings in 

which some individual participant was interested. It was striking 

to me, Wendy, that in that slide that you showed, every one of 

those items had been authored by Ciba-Geigy. I assume this was 

some kind of proceeding around their particular interest or possibly 

about priority setting. And I don’t think I heard—but I may just 

have been suffering narcolepsy—any discussion about the use of 

science advisory panels in rulemakings that actually are underway 

as rulemakings, rather than in, say, deciding what rulemaking 

would be appropriate to undertake. Am I missing something or was 

the panel really about priority setting rather than rulemaking as 

such? 

Ms. WAGNER. I tried to mention in my slides some integration between science advisory boards and rulemaking, specifically the idea 

that science advisory boards would participate early in an agency’s 

process, before notice and comment, in an advisory capacity. So, at 

least I tried to get that across. Now, the decision of when you actually need them in a particular rulemaking, again, that seems to be 

an issue that we really need to get better guidance on. But I did 

at least try to address the ideal time when they come into place 

in the process, which I think is early. 

Mr. PARKER. I’d like to just follow up with that. One of the issues 

on the panel this morning was whether there should be guidance 

about peer review and so forth of adjudications of licensing decisions and so forth. And as I was sitting there listening, I think the 

argument was given that, you know, Vioxx is not a particular matter—is not a general matter of, you know, general applicability and 

so forth, but I was thinking it really is, you know. I mean, the future of Vioxx affects not just the manufacturer of Vioxx; it affects 

everybody. 

1316

And so I think to some degrees in a lot of these areas, the line 

between adjudication and rulemaking and administrative law is a 

bit artificial. I think the issues are quite similar in many cases. 

Science advisory boards are there to opine on the science that underpins rulemaking or licensing decisions in cases in things like 

Vioxx, and the important thing is get the science right. So I’m just 

wondering, you know, to what degree does it matter whether you’re 

talking about science advisory bodies in rulemaking or not? 

Mr. CONRAD. I think Peter’s point is substantially well taken as 

there probably are issues unique to use of science in rulemaking 

that none of us talked about. On the other hand though, much of 

the—as Richard was beginning to say, the scientific documents, 

judgments, what have you that are brought into rulemakings by 

agencies, were are ready done in processes like the National Toxicology Program or EPA’s IRIS panel. Much of the science stuff is 

done in ways—and this is part of the reason I think for the Information Quality Act and part of the reason people hate the Information Quality Act is that these things were kind of in a sort of prerulemaking universe. And so, I think that’s—— Mr. ANDERSON. Well, two things. First, what I know about the 

uses of science advisory panels’ reports in rulemaking is through 

judicial review, and you were on that panel this morning. So that’s 

where you have a lens through which to examine this. 

But the second thing is the CASAC example was all about the 

use of the science advisory panels’ input in rulemaking. The statute—the Clean Air Act obligates CASAC to essentially recommend 

a standard for the agency under the National Ambient Air Quality 

Standards. And particulate matter, that’s where the fight broke out 

because it’s really a struggle over whether it’s going to be the 

CASAC panel or the administrator in the air leadership in the 

agency that’s going to control where this falls. I mean, the CASAC 

is at least saying you got to fall within the range we set. The administrator is—and the agency seems to be struggling with that a 

bit. 

And also on the process level in rulemaking, the questions is, you 

know, are we going to the public with an advance notice of proposed rulemaking at the same time we give it to our scientist or 

not? That’s a big change. And in the minds of some of the members 

of CASAC, this smacks of war. 

LESLIE FRAZIER (phonetic). I’m with the Center for Food Safety 

and Applied Nutrition at the Food and Drug Administration. And 

I’ll direct my question initially to Ms. Wagner but it maybe applies 

to others, but it followed-up on both the last commenter and your 

presentation. Given, from a regulator’s standpoint, we’re really trying to address what we see as an important public health issue 

when we’re doing a regulatory action, and given the number of 

things that are out there now to do, including notice and comment 

rulemaking, but the Information Quality Act and shrinking resources that agencies have, which go against how fast and long the 

process is, what do you see are the arguments for continuing 

with—and I’m not minimizing the importance of the panels, but 

how do you convince agencies that it’s worth spending those resources on science advisory boards when you’re going to have to go 

through the OMB scrutiny? And as Mr. Arbuckle noted this mornVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 01316 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230
1317

ing, notwithstanding the $20 million plus that EPA is spending, 

they’re still OMB’s favorite child. So, what are the arguments you 

put forth for engaging yet another early in the process situation 

when you’re going to end up with all the other hurdles for Information Quality Act, peer review, et cetera? 

Ms. WAGNER. That’s a good question. At a conceptual level, it 

seems to me that the science advisory board process, when done 

early and done right, is the best way to immunize an agency 

against the future. So, I suppose you’re sort of putting a lot of investment at the front-end to do it right and I think that actually 

will buffer all the onslaught that comes after that. Now, that’s not 

to say that the onslaught that comes after that won’t extract a lot 

of time and energy from the agency to respond to a lot of information quality requests or other thing, but I do think that they’re 

going to have less stick when a science advisory board has worked 

closely with the agency to work through a lot of the technical 

issues and essentially clear out the clunkers and keep some buffer 

around the relatively good science. 

Now, I’m not saying that would convince an agency to do it. I 

guess part of my concern is I’m not confident right now that the 

agencies want to survive through the process or even want their 

rulemakings to survive quickly or expeditiously, but let’s assume 

that that’s the case, that they actually want to get regulations out 

to protect public health. Honestly, I think the science advisory 

board process is a way to get through a lot of the contestations that 

turn out not to be productive and not to be using time or resources 

widely. Does that answer your question or? 

UNKNOWN SPEAKER. It does and it doesn’t because it seems like 

it shifts to then a challenge on who (inaudible) and slowing the 

process. 

Ms. WAGNER. I mean, you point is basically that the advisory 

boards add yet another attachment point for special interests to 

glom onto the agencies and argue that it’s doing something wrong. 

So each thing the agency does offers yet another attachment point 

for special interests to glom on—absolutely true. But it seems to be 

that when this is done properly, that it actually helps buffer substantively a lot of the subsequent challenges. So in the end, it 

seems to me actually you do end up with a forward trajectory if you 

do the science advisory board process correctly. I understand what 

you’re saying, but that becomes sort of a hopeless endeavor, that 

we can really never do any meaningful reform of regulation because every time we do a reform it just adds another attachment 

point for the agency. I actually think there is some win-win. 

Now, if we want to be honest and creditable about it, we would 

say that a meaningful science advisory board process replaces all 

the OMB meta-analysis; that when we actually do it right and we 

get the right principles in place, we don’t need all this stuff. We 

don’t need peer review bulletins, and OMB almost seems to acknowledge that. We don’t need risk assessment guidelines. We 

don’t need OMB to do anything to do with agency scientists. So I 

think if we want to be honest about it, if we do this right, then we 

can get rid of a lot of the other attachment points. We won’t need 

them. 

Mr. CONRAD. I agree with Wendy up until the OMB part. 

1318

[Laughter.] 

Mr. CONRAD. But I have seen, to a dismaying extent, an attitude 

within agencies which would, I guess, best put pejoratively be described as never enough time to do it right but always enough time 

to do it over. And, you know, there’s sort of been such a rush to 

get something out and then they get sued and it gets overturned 

and they have to go back and do it over again. If it were done 

right—and I think it would be immunized to some extent in the 

way that Wendy described—it’s that much more immune to challenge I think and therefore likely to actually stand in the end. 

Mr. ROSENBERG. Yes. 

JEFFERY LUBBERS. Given the resource limitations that agencies 

face and the need for long-range thinking, it would seem like one 

of the best uses of a science advisory board would be to do what 

Peter suggested, which is priority setting. I know that EPA, some 

years ago, issued some priority setting reports that were very influential and I’m just wondering why aren’t more agencies doing that, 

using their science resources to set long-term agendas for their regulatory picture? 

Mr. ANDERSON. I agree. They’re much better at that, Jeff. I 

mean, better—next to a self-convening science panel, like the two 

I gave examples on—prioritization, research agendas, that kind of 

advice they should be getting. EPA has done this well through the 

years with its——

Question: Are they still doing it? 

Mr. ANDERSON. —comparative risk analysis, its—I don’t know. 

Mr. PARKER. One problem is defending a very, very broad-ranging comparative risk analysis like what went on in the ’80s itself 

on scientific methodology grounds. And that earlier attack—that 

earlier study that you’re referring to has been, you know, roundly 

criticized as basically a bunch of scientists sort of giving their armchair opinions rather than doing anything scientifically rigorous. So 

that’s one problem I see, although I don’t deny the basic point. 

Mr. ROSENBERG. Thank you. Let me just say that we have to cut 

off the panel. We’re running a little late. Part of the process will 

be (inaudible). Thank you very much. 

[Applause.]

1319

TUESDAY, MAY 9, 2006

12:45–4:45 p.m.—Panel 4: 

‘‘GOVERNMENT AGENCIES’ SCIENCE CAPABILITIES’’

Moderator: 

Laura Langbein, American University

Panelists: 

Richard Belzer, Regulatory Checkbook 

John Morall, Branch Chief, Office of Information and Regulatory 

Affairs, OMB 

Robert O’Connor, Director of Decision, Risk and Management 

Sciences Program, National Science Foundation 

Lisa Heinzerling, Professor, Georgetown University Law School

4:05–4:30 p.m.—A Congressional Perspective 

Raymond V. Smietanka, Chief Counsel, Subcommittee on Commercial 

and Administrative Law, House Committee on the Judiciary

4:30 p.m.—Closing Remarks 

Curtis Copeland, Congressional Research Service

LAURA LANGBEIN. (Inaudible) more explicitly about the science 

and rulemaking and from the perspective that science is about 

method and about doing experiments to test hypotheses. This is 

true in physics, it’s true in natural science, it’s true in social 

science, and there has been no mention of social science, and so I 

wanted to have a panel that focused on the rule of social science 

in rulemaking. OMB has long been using social science to do ex 

ante, before-the-fact analyses of the likely impact of rules using 

cost-benefit analysis and cost effectiveness analysis, combing estimates of probable impact and probable revealed values about various rules. However, I’m struck by how little ex post analysis of the 

actual impact of rules there is in rulemaking compared to similar 

ex post analyses of actual impact using science in social service policy areas where the role of science to do these kinds of analysis is 

simply not questioned. There wouldn’t be a panel like this in the 

social service area. 

But it’s also important to consider the role of public opinions 

about policies and about risk because this is, after all, a democracy 

and politicians do pay attention to public opinion, despite rumors 

to the contrary. And it’s quite obvious that public opinion regarding 

risk and regarding discounting may be different from revealed behavior, and there needs to be some discussion about that. Science 

of course can inform public opinion, and when public opinion and 

scientific evidence about revealed behavior are in conflict, one question that I think needs to be discussed and has not been discussed 

is which one should have standing. How do we resolve the conflict 

between public opinion and scientific evidence? 

So to help us sort out these issues we have four panelists, three 

social scientists and one lawyer. First, I would like to have Richard 

Belzer speak. Dr. Belzer is the president of Regulatory Checkbook 

and managing director of Neutral Source. Both are nonpartisan, 

1320

nonprofit organizations. Dr. Belzer has been a professor of public 

policy at Washington University. He was regulatory program manager for the Weidenbaum Center on the Economy, Business and 

Public Policy at Washington University. He was a principal investigator on a study that examined the extent to which federal regulatory agencies complied with statutory and presidential requirement governing the regulatory process. He was a staff economist at 

OIRA and he has conducted research in many areas of environmental and health policy. He has a doctorate in public policy from 

Harvard University. 

Richard? 

RICHARD BELZER. Thank you. Coming up here I noticed that for 

me it’s an acoustical nightmare back here, and so I’m going to invoke my usual excuse when the Q&A time comes. If I don’t like 

your question I’m going to tell you I couldn’t hear it. 

[Laughter.] 

Mr. BELZER. The panel is on the scientific capacity of agencies, 

so I wanted to give a little bit of history and move forward into 

strategies that have been taken that have had some success, and 

maybe not as much as people had hoped, and then I’m actually 

going to go out on a very long and thin limb and propose a remedy. 

And so that means I’m going to get a lot of questions later and I’m 

not going to be able to hear them. 

Just as far as history, the supply and demand for science and economics in regulatory areas was really minimal until Executive 

Order 12291 in 1981 and then NAS red book in 1983. For simplicity I’m going to combine all of that into the all-purpose term of 

regulatory risk analysis. 

The first executive order made government-wide what President 

Carter had done piecemeal through what was called the Regulatory 

Analysis Review Group. A few of you are old enough to remember 

that, but the important thing here is that brisk analysis, as we 

know it—regulatory risk analysis—owes its existent to Jimmy 

Carter and Ronald Reagan, and that may be the only thing that 

these two men agreed on. Both the supply and demand for regulatory risk analysis has increased dramatically since 1981 and ’83, 

but I would have to say the quality of regulatory risk analysis has 

improved only marginally. Why would that be? Risk analysts as a 

group say it’s because these fields are underfunded. They’re technically very complex. A lot more taxpayer dollars need to be devoted to it. 

Of course, as a risk analyst I sometimes would agree with that, 

but it does tend to be self-serving. I’d have to say that financial 

regulatory risk analysis has proceeded just fine without many of 

these impediments, and it’s simply not the case in the financial 

risk analysis there have been any significant need for additional 

funding. Political scientists often say there are institutional barriers within government bureaucracies and the usual paralyzing effects of interest groups, and we’re heard today more about ossification of the regulatory process. And those also might be good explanations. 

As an economist, I approach this with a little bit different perspective, and I think our problem has been a lack of competition 

in that regulatory agencies control the supply and the use—essenVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 01320 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230
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tially so the supply and the demand for regulatory risk analyses, 

and agencies, as a group, are at least as agenda-driven as private 

stakeholders or companies or Non-governmental Organizations 

(NGO)s or what have you. I think they’re inherently and perhaps 

fatally conflicted in the assessment of risk and in the estimation 

of benefits and costs of risk regulation, and that I think is the 

source of the problem and the fundamental reason for all of the 

multiple tools that have been invented over the years, all intended 

to try to improve this. 

OIRA review has been around a long time. Some people object to 

it, some people don’t, but it’s become I guess a built-in part of the 

regulatory landscape now. Like agencies, the OIRA process is inherently threatened by conflict of interest because OIRA does work 

for the President of the United States, and presidents generally 

have agendas. Now, that conflict isn’t inevitable. Sometimes a 

president will want to do something that is consistent with the 

principles of, say, Executive Order 12866 or its predecessor. 

Most of the conflicts that I have observed over 15-plus years of 

watching this, a lot of it is just really partisanship. The intensity 

of criticism of OMB rises dramatically during Republican Administrations and then it is quite muted during Democratic administrations, but the principles of the executive orders are rarely changed. 

And speaking as a former member of the career staff who worked 

5 years under a Republican Administration and 5 years under a 

Democrat, I don’t recall there being any significant difference in 

the attitude about the principles. 

There are a number of other issues, and some of them have come 

up earlier today, and I guess I want to move on a little bit. With 

respect to the question of whether OMB could do proper scientific 

review—does it have the capacity, or could it have the capacity— a couple problems with it. The first is the size of the career staff 

is really half as large now as it was in the early 1980s and it never 

did, in the old days, have any scientific capacity. It did have more 

economists and policy analysts and what have you, and a handful 

of lawyers. John Graham did introduce a few science slots into the 

program, into the staff, but it is relatively small. If you only have 

about 40 professional staff members and the array of tasks that 

OIRA now has to do are just vastly greater than what it had to do 

20 years ago, it’s just unfeasible for it to do much better without 

a huge increase in staff, and I don’t see any evidence of that happening. 

The OMB review process itself has certain defects in it that are 

built in. It isn’t timely. It occurs way at the end of the process after 

all the decisions have been made. By virtue of it occurring late in 

the process, it is inherently adversarial, it inherently generates 

conflict, and a lot of these things could be avoided if that process 

occurred in sequential stages and earlier, but it doesn’t. OMB 

doesn’t actually have a lot of authority—and for those of you who 

work for agencies, you’re going to chuckle, I suppose, at that. 

OMB’s only authority really is to say no, and as much as I enjoyed 

doing that when I was in OMB, let’s face it; it isn’t real constructive. I did offer my services to agencies early on in the regulatory 

development process; I encouraged them to co-opt me, but in no circumstance was that offer accepted. 

1322

Well, so I’m going to offer you a three-part strategy for fixing 

agency and OMB science capacities. I see the problem as monopoly 

behavior among agencies. They have total control over what science 

they use and many times what they generate. The Data Quality 

Act has had a little bit of effect in allowing more science to enter, 

but I don’t think it’s measurable. And then OMB has inherently 

limited scientific capacity and it operates at the end of the process, 

so it has all these limitations. 

So let me offer three suggestions. The first—actually, let me preface this with a couple of observations about things that have been 

proposed that I think are unlikely to be effective. As popular as it 

seems to be on the panels today, I have serious doubts that judicial 

review is much of a solution. As much as people hesitate to delegate all this sort of scientific review to economists, who really are 

scientists, delegating it to lawyers gives me the heebie-jeebies. So 

I’m not convinced that would be all that helpful. If judicial review 

were limited only to a strictly procedural aspect of it, did the agency fulfill its technical, procedural obligations under the Information 

Quality Act, then arguably that would be helpful in getting agencies to abide by their procedural responsibilities. That’s fine, but it 

doesn’t do what a lot of the proponents of judicial review hoped for 

it to do. It also would be a lot less threatening to those who don’t 

want judicial review to be effective. 

Two other things that I think are unlikely to be effective. The 

first is relying on scholarly peer review. This is, I think, a considerable defect in the information quality guidelines that OMB issued. 

The rebuttable presumption that an article published in a peer-reviewed journal is objective—if you think about that it’s just kind 

of silly. Journals are not in the business of publishing articles 

based on objective truth. They are rationing pages. They are helping professors determine their relative ranking in the pecking 

order. They do a lot of useful things, but this just isn’t one of them. 

And then second, relying on government-sponsored peer review is 

always going to have the problems we’ve heard about earlier today: 

who do the peer reviews work for? Are they doing scientific review? 

Are they doing policy? It gets very complicated. I am a proponent 

of a different model of peer review. I’ve been working on that 

through Regulatory Checkbook for a couple of years. I do think it’s 

helpful. Perhaps because I think it’s helpful, it’s also becoming controversial. 

Well, what would be successful? Now to my three parts. The first 

is, get scientists out of making policy and get policymakers out of 

doing science. Everybody knows that policymakers make bad scientists. What everybody doesn’t seem to realize or accept is that 

scientists also tend to make bad policymakers. The more that scientists are asked to do policy, the more they’ll be losing their legitimacy as scientists. 

Second, I think we need to make the policy-driven assumptions 

that go into risk assessments and other documents as transparent 

as possible, but actually I think a genuine last resort in the absence of science. I’m an economist by training and I pay more attention to revealed preference than to stated preference. In Washington we do a lot more work on stated preference. We listen to 

what people say but we don’t watch what they do. Regulatory agenVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 01322 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230
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cies often state a preference for scientific evidence over policy assumptions but they don’t reveal those preferences when it comes to 

actually taking action. They refuse to provide clear guidance as to 

what exactly is the level of scientific evidence they’re looking for. 

And what they do by being ambiguous is they create uncertainty, 

and the uncertainty then weighs down the expected value of scientific research, and at some point it becomes clear that science 

really doesn’t have any weight at all in the policy process and the 

market demand for doing science will fade. 

And then finally—and this is where I’m going to be out on a limb 

a bit—I do think that we need to instill competition in the generation of regulatory risk analysis. Now, competition works everywhere else to reduce costs, to increase output. It improves quality 

and it stimulates innovation. Now, are any of these things that we 

don’t want in a regulatory risk analysis? I think they’re things that 

we do want and our current system doesn’t provide that. 

Now, why is competition then in risk analysis essential? If the 

fundamental problem is monopoly power, the way I have portrayed 

it, then we know that monopolies will continue—because they have 

no incentive to do otherwise, they will continue to produce too little 

output at too high a price and at too low a quality. Regulatory 

agencies that act as monopolies should be expected—without having to be pejorative—to behave in that same manner. Regulatory 

agencies are conflicted in these decisions over what kind of risk 

analysis to do and how to go about doing it because they have interests in the outcome. The interests extend across political parties 

and they extend across interest groups. They apply to both the 

science of risk analysis and the economics of risk analysis. 

For every industry or trade association that objects to how some 

agencies conduct chemical risk assessment, there is an environmental NGO that objects to how other agencies write biological 

opinions for endangered species. For every industry association 

that objects to the way benefits are estimated by an agency, there 

will be an environmental NGO that objects to what another agency 

will estimate the benefits from building dams or building highways 

and building levees will be. 

So to create a market for that, to create a competitive market for 

regulatory risk analysis, what does it take? Well, what it takes is 

a mechanism for sorting out competing estimates, competing values 

and using that as the foundation for what we tell the public are 

the likely effects of what we’re proposing to do. Now, there is a 

well-established method in the economics literature called final law 

for arbitration, and I submit to you that it’s a very effective tool 

for depoliticizing science and economics and getting a better set of 

outcomes from that. 

What are its essential features of final law for arbitration? Well, 

you probably haven’t heard of it as that, but you’ve heard of it as 

baseball-style arbitration. A long time ago there used to be intense 

controversies over how much ballplayers ought to be paid. That has 

pretty much vanished, and it has vanished because if you’re a veteran ball player, baseball player, and you don’t want to go into the 

free agent market because you’re maybe not eligible, you can go to 

final law for arbitration and the team puts forward what it believes 

1324

you’re worth and you put forward what you’re worth, and an independent chooses and that’s it; it’s over. It really quite simple. 

So what does it take in this context? We did a relatively straightforward decision that would need to be made by the arbitrator. In 

the regulatory context it’s very important that that not be what 

risk management decision ought to be made. Arbitrators cannot do 

that. Rather, it’s what we should tell the public are the likely effects, both good and bad, both intended and unintended, of each option that we’re considering. Second, we need an arbitrator—it has 

to be an arbitrator who would chose among these competing risk 

analysts. The arbitrator does not mediate settlement. He cannot 

compromise among the competing bids but must instead choose the 

best risk analysis from all the risk analysis available. This cannot 

be a regulatory agency doing it because the regulatory agency is 

partial to a particular outcome. 

Now, I tend to let OMB do it because within the government it 

does seem to have the broadest view of the public interest, but I 

can anticipate a lot of objection to that, and I think the simple solution to that is for OMB to build a roster of competent independent arbitrators and use, if nothing else, a random decisionmaking process to select one, and then kick it out of OMB. 

Now, third, an arbitrator has to have clear, pre-established, understood criteria to use, and then the arbitrator must actually use 

them. The criteria set forth in Executive Order 12866 provides a 

useful point of departure. They were established and implemented 

by a Democratic Administration, have been accepted and implemented by a Republican Administration. We are unlikely to do any 

better if we convened a thousand more symposia and tried to craft 

a new set of criteria. 

To be eligible for service as an arbitrator, I propose only that the 

arbitrator be qualified technically and be willing to accept the executive order as the sole authority for selecting the best analysis. 

Now, why would we want to go do something as silly as this? Well, 

the final law for arbitration eliminates the incentives to exaggerate 

your case. If you exaggerate your case, you’re more likely to lose. 

If you don’t exaggerate your case, then the competing risk analysts 

are going to be much smaller in scope and diversity. They’re going 

to vary on very technical, mundane, probably boring questions that 

only pointy-headed analysts would care about. And the level of pinnacle controversy has to decline because we’re only debating some 

very small points. 

Like in the baseball case, when baseball settles its arbitration 

problems relatively painlessly, cleanly, the baseball teams and the 

baseball players and the union all accept the outcomes and they 

walk away. I believe that this is a method for ascertaining once 

and for all, independently, what are the likely effects? What are 

the risks? What are the costs? What are the benefits of these individual alternatives that we’re considering, and then let the risk 

managers and the political system then vet which one ought to be 

chosen from there. 

Thank you. 

[Applause.] 

Ms. LANGBEIN. Our next speaker is John Morall. John Morall is 

probably well known to many of you. He is the branch chief for 

1325

Health Transportation and General Government at OIRA. He was 

the lead author for OMB’s annual report to Congress on the costs 

and benefits of federal regulations and is generally an expert in the 

area of regulatory reform and regulatory analysis. He was a visiting economist at the American Enterprise Institute and at Brookings. He has a Ph.D. in economics from the University of North 

Carolina at Chapel Hill, and is going to speak to us (inaudible) 

briefly. 

JOHN MORALL. Yes, I’ll try to be brief. Well, thank you, Laura, 

for inviting me. I’m delighted to be here at the Katzen Center. I 

have very fond memories of that name—Katzen. 

[Laughter.] 

Mr. MORALL. I’ve also had a good time in this very Hall because 

I’ve watched my daughter play the violin for the AU orchestra 

here. And I also want to thank Neil Kerwin, who is probably not 

here. He is President of the University. He has done a great job 

this last—let’s give a hand for Neil Kerwin. 

[Applause.] 

Mr. MORALL. He’s running this very important Center at the 

same time that he’s running American University—and I’m not 

just saying that because my wife works for him. 

[Laughter.] 

Mr. MORALL. Now, my remarks are my own and do not necessarily represent the views of OMB. Take Don Arbuckle to represent the views of OMB. But they do represent the views of someone who has reviewed the scientific and analytical support for all 

sorts of federal regulations for almost 34 years, the last 30 at the 

Executive Office of the President and the last 25 at OMB. So I’ve 

worked for six presidents. My observation is that the science capabilities of the agencies have significantly improved over these 

years, but that there is still room for improvement. By ‘‘science’’ I 

don’t mean just physical sciences; I also mean the social sciences— economics, decision sciences and policy analysis. After all, economics does get a Nobel Prize. 

I think there are two main reasons for the improvement over the 

years. The quality of the civil servants has improved, and I think 

that’s in part because of the many schools that now are providing 

well trained scientists and policy analysts to government service, 

including the Kennedy School at Harvard and the Harvard School 

of Public Health, and also including AU. You may not know this, 

but the American University for the last two years has won more 

Presidential Management Fellows (PMF) than any other school. 

And to boast a little bit, I just hired a PMF—not from AU unfortunately; it was from another school. I think it was Oxford. She’s getting her Ph.D. and she’s an expert in health, and especially—I 

don’t know is this will be useful for me, but she is one of the many 

experts in the world evidently on diabetes analysis for the British 

Public Health Service. 

[Laughter.] 

Mr. MORALL. Second, I believe that OIRA, over its 25-year history overseeing the regulatory process, has raised the quality of 

science analysis used in rulemaking. Just self-serving on my part? 

No, it’s the view of dozens of countries around the world, who know 

how we deal with regulations. After, in many cases, following the 

1326

U.S. lead in deregulating economic regulation—with much success, 

I might add—they now want to learn how we systematically deal 

with risk regulation. Specifically they want to follow our lead and 

strengthen the science-based transparency and oversight of risk 

regulation. The U.S. government has just finished hosting two separate conferences on regulation with our two largest trading blocs, 

NAFTA and the EU. Both groups of officials, some from regulatory 

oversight agencies were very interested in how we do things at 

OIRA. 

The Organization for Economic Co-Operation and Development 

(OECD) has just begun a program over several directorates—competition, trade and governance—focusing on risk assessment and 

best practices. In all these cases, the U.S. model has been an inspiration in the analytical capacity of the U.S. regulators—much admired. It’s very useful I think for people who are studying U.S. regulatory processes to look at how it’s done in other countries and to 

see the lack of transparency, the lack of science often—and maybe 

I’m exaggerating, but compared to the U.S. there is wide differences in transparency and the use of sound science. 

Now, the role of OMB of course is to help manage the public’s 

limited resources, whether gathered by government taxes, borrowing, or regulation. We take a broad perspective. We do not advocate for specific interests such as housing, national defense, education, commerce, labor, transportation, homeland security, or the 

environment. We advocate for all those interests and others by suggesting ways to maximize the benefits of government policy to society, given the well-known constraints. One of these ways is to provide guidance to agencies on best practices that other agencies are 

also using—we spread the word—in order to improve transparency, 

consistency, accountability and their decision-making. I make this 

point because advocates often would like less consistency, less 

transparency, and less accountability if it strengthens their cause. 

Why else would they complain about the legitimacy of guidance designed to improve governance rather than suggest constructive 

ways to improve it? The guidance comments on the risk bulletin, 

by the way, are still open. 

By the way, apparently advocating for the public interest is also 

professionally satisfying. In a study conducted by the Institute for 

the Study of Public Policy implementation here at American University, OMB ranked one out of 30 agencies. The National Science 

Foundation was second. Unfortunately ther Small Business Administration (SBA) was last. The Department of Homeland Security 

was, I think, next to last—even though you guys are supporting 

them. 

[Laughter.] 

Mr. MORALL. Now, before he started this effort—excuse me—one 

of OMB’s main goals has always been to improve the quality of decision-making by asking for high-quality, objective data, facts, 

science and presenting it in organized ways to the accountable decision-maker. Notice we report to the accountable decision-maker; we 

don’t make decisions at the staff level. 

Dr. John Graham’s Ph.D. was in decision science, not economics, 

by the way. Much of what we are talking about today is about his 

efforts to improve the basis for regulatory decisions. Don has alVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 01326 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230
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ready described many of them—Circular A-4, the IQ guidelines, 

peer review guidelines, and now the risk-assessment guidelines. All 

were developed through peer review notice and comment and pursuant to statute, and many represent best practices from other 

agencies. We worked also with the Office of Science and Technology 

Policy, the National Academy of Science, and consequently developed advisors to develop these guidelines, depending upon the type 

of guideline. 

But before he started his effort, Dr. Graham first built up the 

quality and diversity of OIRA staff by hiring Ph.D.s in toxicology, 

engineering, epidemiology and health economics to go along with 

our Ph.D. economists, statisticians and policy analysts. A large part 

of this smarter regulation agenda—by the way, Canada calls theirs 

the smart regulation agenda and they’re really upset that we call 

ours the smarter regulation agenda. Canadians seem to have this 

problem with the United States. A large part of his agenda was to 

increase transparency of the information gathering and the regulatory development process. Over time, by the way, more transparency has been built in to allow review. We have come a long 

way from the Quality of Life Review when Jim Tozzi was at the— was working on the Quality of Life Review in the Nixon White 

House. Think about going back to those days without that transparency and compare it to what we have today. 

A lot of this, of course, has been forced on OIRA by Congress— rightfully so, I believe. And, by the way, our regulatory impact 

analysis (RIA) process is built on a notice and comments rulemaking which is much more transparent than anywhere in the 

world that I know of. Now, information dissemination, peer review, 

RIAs, perhaps risk assessments and the regulatory development 

and consultation process are more transparent now, and transparency increases the quality of science and its use in regulatory 

decisions. Note the distinction here we should make between transparency and the analysis and the risk assessments and the science 

in transparency in the deliberative process. The National Academy 

of Science rightly needs to make deliberations. They need to have 

some closed doors. Obviously for the give and take, so do we in the 

Executive Office of the President. 

Now, our push for quantification, monetization and formal probability estimates, all based on science when feasible and reasonable 

and qualitative evidence when not, makes our decision-making 

transparent, but it also makes it easier to criticize. As Professor 

Heinzerling knows, it’s easier to criticize someone’s numbers, especially if they’re of mythic proportions, than to criticize advocacy for 

a good cause. One might think that quantitative analysis in transparency is apple pie, so why am I being defensive? Well, not everybody agrees with this, as we’ve heard somewhat already today. Professor Heinzerling has argued that it would be better if we left the 

picture blurry and declined to connect the dots between all our confusing and sometimes conflicting institutions and evidence. I think 

I quoted that right, right? 

In fact, Professor Heinzerling argues not for improving the quality and objectivity of benefit-cost analysis in risk assessment, but 

for reliance on moral imperatives, the precautionary principle, and 

fairness. She argues that the priceless should not be priced. PerVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 01327 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230
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haps we are not so far apart. There are ways not to price priceless 

goods such as health. It has been developed by health economists 

and decision scientists and is used to determine the advisability of 

medical intervention. It’s called cost effectiveness analysis—CEA. 

It uses health metrics such as quality-adjusted life use to quantitatively measure health. OMB sponsored a study by the Institute 

of Medicine, part of the National Academy of Science of course, as 

to whether this practice would be useful in regulatory decisionmaking and they said it would be. And I can attest that the moral 

imperatives, precaution and fairness do play a part in every final 

regulatory decision made by those accountable to the voters that 

I’ve been aware of over 25 years. And I agree that that is the way 

it should be as long as the quantitative evidence is also presented. 

Now, Lisa may just—excuse me, Professor Heinzerling—I can 

call her Lisa, I guess. 

[Laughter.] 

Mr. MORALL. Lisa may disagree. Rick may also disagree. He argues that decision-makers almost ignore the benefit-cost analysis 

and go with the politics. I feel very comfortable being in the middle. That’s how we at OMB view our job. Thank you. 

[Applause.] 

Ms. LANGBEIN. Our next speaker may give the appearance that 

there is really a closet—or not so closet—old-boy network up here, 

which raises—and I guess what I’m saying here is I think it’s hard 

to detect old-boy networks because that was an issue that was 

raised in the previous panel. 

Dr. O’Connor is the co-director of the Decision, Risk and Management Sciences Program at the National Science Foundation. He is 

also on the Subcommittee on Disaster Reduction of the National 

Science and Technology Council of the Executive Office of the 

President. He has spent 20 years—really 30 years of—done 30 

years of research into public perceptions of cumulative, uncertain, 

long-term risks of technologies that are perceived as risky, and 

agency risk communications. His articles have appeared in journals 

on political science, in risk analysis, and in general social science 

journals. To make my points about the old-boy network, he too 

earned his doctorate in political science at the University of North 

Carolina at Chapel Hill, as did I, so there are three Tar Heels up 

here. We may look like an old-boy network but I think the communications among the three of us are zero. 

[Laughter.] 

Ms. LANGBEIN. He is professor emeritus of political science at 

Penn State University and he will talk to us about public opinion 

and risk. 

ROBERT O’CONNOR. Laura, thank you very much. I thought I 

would be unique and not use my slides, but it turns out I’m not. 

So I still will not use them since I’m changing my presentation. 

[Laughter.] 

Mr. O’CONNOR. Changing the presentation also explains why I 

have to give the disclaimer—not that I had had this presentation 

approved anyway by the National Science Foundation. Since the 

title of the panel is ‘‘Government Agencies’ Science Capabilities,’’ I 

was going to talk about that, but instead I’m going to talk about 

two things: one, the science capabilities of the National Science 

1329

Foundation, and number two, what you asked me to talk about recently, public opinion toward risk, et cetera. I will be quick, I promise. I know you can’t believe that, knowing me, but anyway—okay. 

One reason I wondered why I was asked to be on this panel was 

that science capabilities of the National Science Foundation are 

just about zilch. We fund science; we don’t do it. Yes, there is a 

small unit that does research itself, like the science capabilities 

and number of Ph.D.s turned out in sciences. And by the way, I 

would add, at the National Science Foundation, science includes social science. But that’s essentially 95 percent of the budget leaves 

the building. It supports research; it does not do research. As a result, the Information Quality Act has changed nothing at the National Science Foundation. Wendy Wagner (phonetic) made a distinction between regulatory research and basic research. We fund 

basic research. Of course some of this has relevance to the regulatory process and regulations, but the purpose of the research that 

we fund is basic. It’s to have exciting discoveries, new theoretical 

advances. That’s it. We are legally prohibited from taking policy 

stands or positions on scientific issues. If you ask, what is the position of the National Science Foundation on Climate Change, the 

answer is we do not have one. We fund a good deal of research. We 

have a whole division of atmospheric sciences. We fund social 

science research about the economics related to climate change, 

public opinion—well, I can go on and on. We’ve spent millions of 

dollars. The people we fund are free to make what they will of their 

own research. They can reach whatever conclusions they want and 

promote whatever policies they want, but that’s not the function of 

the National Science Foundation. 

So, real quickly, yes, we do peer review. It’s required. We take 

it very seriously. When I get a proposal I send it out to six mail 

reviewers—that’s M-A-I-L reviewers. I also have an advisory panel. 

Two of those individuals will read the proposal. The advisory panel 

then gets together and reviews all of the proposals from that competition and gives me advice as to what category they put them—

into the ‘‘must fund,’’ ‘‘should fund,’’ ‘‘could fund if we had lots of 

money,’’ or ‘‘decline’’—anyway, you get the point. This is advisory. 

The actual funding decisions are made by program officers in practice. 

Okay, have we funded research related to rulemaking and data 

quality? Of course. We funded research on how the public can estimate the value of risk reduction. We’ve funded research on the 

value of statistical life, on expert elicitation methods, on natural 

language processing, support for e-rulemaking, on the effect of accepting comments electronically, on the nature of the rulemaking 

process and its democratization, the effect, et cetera, et cetera, et 

cetera. If we haven’t funded a particular topic you’d like to see 

funded, I suggest you send us a proposal. We are a bottom-up agency. In my program, I don’t sit there and think, okay, for this next 

competition, the target date is August 18th. I’m looking for, oh, 

gender studies on negotiation effects, or whatever. None of that. 

We figure that you, the research community, is a lot brighter than 

we are, so make a case for why what you think should be funded 

is likely to produce important new knowledge. The two funding criVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 01329 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230
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teria are intellectual merit and broader impacts. And that’s all I 

have to say about the National Science Foundation. 

Now—and I really will be brief—on public opinion on risk, I have 

four really—four comments, two of which are cliche ́s. The first 

cliche ́ is never underestimate public ignorance on subjects most 

people don’t care about—— [Laughter.] 

Mr. O’CONNOR. —which is most of the stuff you guys care about, 

except if you happen to be in EPA with the carpet and you’re getting sick and—yeah, you care about it, but most of this stuff is inside baseball. Yeah, you care that in general your kids will be 

healthy and not exposed to unreasonable risks, blah, blah, blah, 

blah, blah, but the rest of it is inside baseball. So if you ask the 

public, you know, for the views of causes of stuff, you would be 

amazed at the general ignorance on topics the public doesn’t care 

much about. 

The second cliche ́—and I will resist the Thomas Jefferson quote 

you’ve heard a thousand times—is never underestimate the public’s 

ability to learn and make reasonable judgments. As the public becomes concerned about an issue, if they read about it, learn about 

it, you’d be amazed. People have the ability to reason in a sophisticated manner. I sometimes don’t like it when they disagree with 

my particular preferences, but we’ve got all kinds of data on this. 

The public can learn and does learn when it has a reason to. 

Okay, my third point is—and this is a tough one to the risk 

group to say, but don’t overestimate the importance of risk perceptions in the public’s policy preferences and attitudes, that since we 

study risk and we think it’s important, we think, well, that’s got 

to be the game, but on lots of issues it is not. One area I’ve researched fairly extensively myself is public attitudes toward the 

proposed radioactive waste and spent fuel repository at Yucca 

Mountain, Nevada, better known as the ‘‘nuke dump.’’ This is not 

popular among the citizens of Nevada. Proponents have spent a lot 

of money trying to convince Nevadans that it’s safe. Well, if they’d 

looked at my research they would have learned that Nevadans are, 

you know—realize that this is a hundred miles from Las Vegas out 

in the middle of the desert. The worst thing that’s going to happen 

isn’t going to be all that bad, so why don’t they like it? They don’t 

want it because they think it’s just plain unfair. They don’t have 

nuclear power-generated electricity in the state of Nevada. There’s 

a tiny bit from California but, you know, basically they don’t. They 

already argue that they’ve done their fair share as patriotic citizens 

with the nuclear test site—the feds only—(unintelligible)—percent 

of the land. And they think it’s just unfair for the rest of the nation 

to take all of our spent fuel. If this repository is so safe, why not 

stick it in Pennsylvania? Or actually, there is a nice block of granite in Rosslyn—and I’m not kidding—which would be very suitable 

for a radioactive waste repository. So anyway, you get the point. So 

a lot of things go on in why people find a policy or something acceptable or not acceptable, so don’t assume that it’s all about risk 

because it’s not. 

And my final point is the role of public opinion in policy. Some 

folks—probably not this crowd—tend to think, gee, if you don’t 

have the public clamoring for action, nothing will happen, that you 

1331

need to have an aroused public to get a policy change through Congress. I think that’s a misreading of the history of public policy in 

this country. The Resource Conservation and Recovery Act for you 

environmental mavens out there, there was no public—certainly, 

yeah, people were concerned about dumps, but there was no great 

public outcry wanting that, no. The technical community and others figured out that it was about time to have a national policy that 

would make sense. It was fought and you got the Resource Conservation and Recovery Act. 

There are three types of public opinion. There are times when 

the public demands action. For example, after 9/11, the federal government did not have option to say, well, this is a horrible event 

but we don’t think we should do anything; we think it should be 

left to the states; after all, we have too much federal involvement 

in our lives anyway. That wasn’t an option. The public demanded 

action. 

Sometimes you have public opinion that says I don’t care what 

you do as long as it’s not this. In large parts of the nation bussing 

to achieve racial desegregation was something where you have 

aroused publics saying no; we won’t stand for it; we will stop it. 

Most of the time you have permissive public opinion. That is, you 

experts out there, whether it’s science advisory boards or scientists—scientists are trusted in America—no, not scientists who 

work for the tobacco companies, but government scientists, university scientists; they are trusted. If the public will say, you know, 

do what makes sense, do the right thing, and even we are willing 

to sacrifice as long as it’s reasonable. 

One example and my final point is climate change. If you look 

to public opinion toward climate change, I would argue that it’s a 

permissive public opinion. Most folks think, yeah, there’s a problem 

out there and that they are willing to sacrifice as long as the sacrifices are, A, fair—nobody wants to be a sap—and B, effective; 

you’re not going to sacrifice for something that is not going to work. 

Thank you very much. 

[Applause.] 

Ms. LANGBEIN. Our last speaker is Lisa Heinzerling. Lisa a professor of law at Georgetown. Her expertise is environmental law towards administrative law, cost-benefit analysis, and of course regulatory policy. She was editor and chief of the University of Chicago 

Law School Review. After she finished law school there, she clerked 

for Judge Richard A. Posner of the U.S. Court of Appeals and also 

for Justice Brennan. 

She has been a visiting professor at Harvard and Yale Law 

Schools. Her scholarship is in environmental law, which has been 

published in many journals, including the Yale Law Review, the 

Harvard Law Review, and the University of Chicago Law Review, 

as well as the Georgetown Law Journal. And her book with an 

economist, Frank Ackerman, is of course ‘‘Priceless: On Knowing 

the Value of Everything and the Value of Nothing.’’ And that was 

published recently in February 2004, and so I will be your shameless promoter. And she won the Georgetown University’s Faculty 

Teaching Award, which I think is also a good recommendation for 

our next speaker. Lisa? 

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LISA HEINZERLING. I always tell audiences this: If you go and by 

my book ‘‘Priceless’’ on Amazon.com, please buy it with the ‘‘Da 

Vinci Code’’——

[Laughter.] 

LISA HEINZERLING. —so that they will say people who are buying ‘‘Priceless’’ are also buying—or people who are buying the ‘‘Da 

Vinci Code’’ are also buying priceless. 

[Laughter.] 

Ms. HEINZERLING. I have the coveted last panelist position of a 

long, but interesting day. When Laura asked me to serve on this 

panel, I noted that the panel title was in ‘‘Science Capabilities of 

Regulatory Agencies.’’ And I said to her, well, I assume you want 

me to talk about cost-benefit analysis. And she said, yes, and I 

said, but I don’t think that has anything to do with science, and 

she said, that is the point. 

So here I am to talk about cost-benefit analysis. I’m talking 

about formal cost-benefit analysis. That is the kind that OIRA demands and OIRA reviews, the kind that requires the quantification 

of costs and benefits as far as possible, their monetization or translation into dollar terms of the benefits and costs of regulation, including saved human lives, human health, nature, and so forth, 

and the discounting of cost and benefits again, including lives and 

health. 

This is not analysis that—simply in any respect possible—considers costs. I think Don Elliot—I told him this. He is not here 

right now to say anything, but I have said it to his face. I think 

he was wrong when he suggested—oh, Don, thank you, hello. When 

he suggested that I was against considering costs, or that somehow 

if you’re against cost-benefit analysis, you’re against considering 

costs. Most of our regulation in the federal government today in environmental regulation takes place under the rubric of technologybased regulation; not cost benefits, but considers costs. 

What I’ll be talking about is the formal cost-benefit monetization, 

quantification discounting that I just mentioned at the outset. So 

I want to make three points about this kind of analysis. One, it is 

used as a one-way ratchet towards deregulation today. Two, the 

numbers are frequently made up. Three—and this is the most I 

think speculative point—I think it hurts rather than helps the scientific capability of agencies. 

First, number one, cost-benefit analysis is used as a one-way 

street to deregulation. Rick Belzer said that OMB only says no. 

Here I agree with him. I’m in complete agreement. That is what 

they said; they say no. There are good reasons I think having to 

do with theory to expect that cost-benefit analysis generally in 

most cases will be skewed against health, safety, and environmental regulation. We can go into those if we have time for questions and answers. 

What I want to talk about is the practice of cost-benefit analysis 

and the fact that in practice, cost-benefit analysis is used today in 

this town almost entirely to say no to regulation. It is not brought 

out when the proposal is to deregulate. It is wheeled out to undermine positive proposals for regulation. It is not wheeled out when 

the proposal on the table is deregulation. Let me just give you 

three examples. There are many more I could cite. 

1333

One, EPA a while back relaxed requirements for the new-source 

review program, or the program dealing with pollution, air pollution from large power plants and factories. Did it do a cost-benefit 

analysis? Was it required to do so by OMB? No. Some years ago 

the forest service declined to defend a policy protecting almost 60 

million acres of forestland in the United States, publicly owned 

forestland. When they declined to defend that regulation, when 

they then offered a gutted version of the regulation, was there a 

cost-benefit analysis done of this legacy of almost 60 million acres 

and what would it mean to lose it? No. 

When the EPA decided not to regulate greenhouse gasses from 

automobiles, was there a cost-benefit analysis done? No. When we 

deregulate, apparently it’s fine not to do cost-benefit analysis, but 

when we regulate, we must do cost-benefit analysis to the nth degree. The basic idea here—as I say, the examples could be multiplied—is that cost-benefit analysis simply stays in our pockets or 

OIRA’s pocket or the agency’s pocket when deregulation rather 

than regulation is at issue. 

This for me is a reason why the debate has become fundamentally uninteresting. It is terrible to say that if you have spent over 

a decade studying and writing about something, right, as an academic, and then suddenly to conclude this is uninteresting intellectually. It is meaningless almost intellectually. Why? Because it 

works in one direction: It is a device that is used to give scientific 

cover to fundamentally political enterprise. 

As for the question Peter raised this morning about whether perhaps judicial review could be used as backpressure against this political pressure, whether judicial review could be used in order to 

stop agencies from acting quite so politically, I just offer you one 

example. Example comes from a rulemaking under the Clean 

Water Act, where it’s quite clear from the paper record that OMB’s 

role was to gut a standard that EPA had first come up with, and 

that OMB came back and said, nah, you know what; we don’t want 

you to put in control technologies at power plants around the country; it’s just too expensive. 

When it came time for judicial review of that standard, the one 

document that the federal government didn’t want in the record, in 

the administrative record to be reviewed by the court was the document showing how EPA had done what it did, and that is that it 

had caved to OMB’s pressure. So that the idea—if that stands, the 

idea that judicial review will provide a backstop to the kinds of 

pressure I’m talking about I think is not realistic. 

Number two: The numbers are frequently made up. There is precision without accuracy so that if I prefer, as John Morall quoted 

partially me, an article some time ago that I wrote—if I prefer to 

keep the numbers blurry it’s because the numbers are so wrong. It 

is better to be honest about our lack of knowledge than to provide 

some number that is simply made up. These numbers are not offered with any resemblance to the kind of scientific rigor that is offered in estimates of risk, in my opinion. It is so bad, in my opinion, that one could, if one were inclined, file daily challenges to 

OMB’s cost-benefit analysis under the information quality act. 

I’m going to suffice with two examples. One, a huge issue today 

has to do with the setting of the National Ambient Air Quality 

1334

Standards for Particulate Matter. Fred Anderson alluded to this 

when he talked about CASAC a few minutes ago. Now, if you want 

to get—this is the kind of fun I have. The fun never lets up if 

you’re a law professor interested in these issues. So you just go to 

the web and you can look at the RIA, and you just pick out stuff 

that doesn’t make any sense, right. You can do this every evening 

if you want. And as citizens you should; you should look up these 

documents and say to yourself do they make sense. 

Here is one example from the OIRA. Again, I could multiply 

them but we don’t have time. Some kids have to stay home from 

school when they have asthma. And sometimes pollution makes 

that condition worse so they have to stay home because of their 

asthma condition. 

And the question that arises when you do a cost-benefit analysis 

of air-quality standards, what is that worth—your kid has to stay 

home from school, what is that worth? Does it have to do with their 

educational losses? Does it have to do with their pain? Does it have 

to do with what the parents would be willing to accept in exchange, 

compensation and exchange for letting their kid get sick—all of 

that kind of stuff. What is it worth? Those are really hard questions. I don’t think they are answerable by economists. 

But here is the answer that is given in the OIRA. It has to do 

with a mother’s median wages. So you look to see what does the 

mom make, right? What does she make per day, and that is what 

it’s worth if a kid stays home. And by the way—and this is the 

greatest part; this is the part where I just think you just—it’s just 

made up. 

If the mom stays home, which a number of us do, then it’s worth 

nothing if your kid has to stay home because of asthma. Why? And 

there is a wonderful sort of euphemistic account of this in the 

OIRA, but basically because you’re home anyway. 

[Laughter.] 

Ms. HEINZERLING. I mean, really, how much more do you have 

to do? You’re child is sick; you’re home anyway; how much do you 

have to do? It’s worth zero. We are giving it a big goose egg. 

Okay? So that is one. That seems to me just a completely made 

up number from the OIRA. This is the kind of an analysis that if 

it sees the light of day when the public gets a hold of it, they don’t 

like it. And so sometimes I think it’s not a coincidence that these 

numbers and these kinds of analyses are buried in documents that 

you have to be me to discover. You have to be weird to want to look 

at them and get through them. 

Okay, second example of made up numbers: A lot of times in 

cost-benefit analyses, especially of environmental regulation, the 

only thing that we can quantify for a whole variety of reasons are 

avoided deaths due to cancer. What happens to those? How do we 

value those? Well, here a big issue is not only what is the dollar 

value of dying, right—it turns out it’s about $5 million in case you 

were wondering, but what if you die in the future rather than 

today? 

So cancer has a latency period 20 to 30 to 40 years. Is that worth 

less? The answer from the government is, yeah, that is worth less. 

And so we are going to discount it over those decades. And essentially if you know anything about this technique, discounting is 

1335

compound interest in reverse. So just like compound interest makes 

little things magically become big in the future, discounting makes 

future things magically become small. So if you discount that future death at any positive rate of return over decades, it looks trivial. 

What is the point of this? Well, what is the basis for discounting? 

The discount rates that are used by OIRA are based on financial 

rates of return on private investment. It is real hard to see how 

that relates to our willingness to take a risk of getting cancer. I 

just don’t see the relationship between private rates of return on 

financial investment and the risk of cancer. 

And even the question about whether something in the future is 

worse than something today, there is some evidence that people 

fear cancer more than they fear other diseases. So here again, it 

just seems to me that there is mindless glomming onto a number 

just for the sake of having a number that really has no basis in 

fact. And, indeed, as I say, could be subject to an IQA challenge 

if anyone were of the mind to do so. 

The last point: cost benefit analysis hurts the scientific capabilities of regulatory agencies. As I mentioned, it seems to me this is 

the most tentative and speculative point, but here is the idea. If 

you have results, scientific results that are going to get the goose 

egg in the column, right. You have moms who don’t work and they 

are going to get a big zero when they stay home with their kids. 

If you have benefits in the column that they are going to occur in 

a few years so they get discounted practically to zero, what is the 

point of being so careful about getting at those numbers? You are 

just going to get a big zero; a big cipher in that column at the end 

of the day. 

Then that raises for me what does that do to our incentives to 

getting those numbers right in the first place and certainly pay 

more attention to trying to get at these what I think are quite illusive numbers, means that we don’t have the resources to aim at 

scientific questions. In this way it seems to me cost-benefit analysis 

is deeply but stealthily corrosive of science in regulatory decisions. 

I want to make one last point about the U.S. model of regulatory 

impact analysis. Absolutely I’m aware that many delegations have 

come to John Graham and John Morall’s door seeking information 

about the way they operate. After they appear at their office, they 

appear at mine, and they ask me, well, how does it really work, 

and I tell them. Thank you. 

[Applause.] 

Ms. LANGBEIN. I will allow each panelist one sentence, short, to 

rebut, because we are running out of time and the audience probably wants to say something and the day is supposedly officially 

over. So is—if somebody would like to make a short comment. Anyone? John? 

[Laughter.] 

Mr. MORALL. Lisa, it’s just a tool; it’s just a tool. It can be misused. You can find examples where it may have been misused, but 

a lot of the things you said are not simply true. I wish you could 

come to OMB and look at the quality of the people we have working there trying to do the right thing, looking at the analysis from 

a careful objective viewpoint. 

1336

It’s not true—I can’t speak about all of the examples you gave 

from EPA. I don’t cover EPA. But I can talk about where we have 

used benefit-cost analysis to promote regulation. John Graham implemented what was called (inaudible) where we pushed the agencies to speed up rulemaking in transfat, in automated external 

defibrillators (AEDs) in the workplace, in describing how omega-3 

can be helpful and beneficial, in several areas in the safety area. 

And I agree with you completely that the explanation of the asthma benefits are wrong. They did not use willingness to pay there. 

As I was trying to point out, there is a new technique that John 

Graham has pushed that I think we should adopt from the medical 

area, and that is using cost-effective analysis that weighs it in a 

quantitative way but does not place the value on those things that 

are very difficult to value. 

And finally, I just want to say something about discounting. We 

are not discounting lives; we are not discounting health. We are 

looking at the opportunity cost if you invested the resources that 

you could have used to eliminate those—how that would grow over 

time. It does grow at the rate of compound rate. In the Carter 

years, going back there, we used 10 percent. I had to use that on 

my paper that I did in 1986 that you criticized. But Bush 41, they 

lowered it to 7 percent, which is more in tune with the opportunity 

costs of capital that is shown by stock market data, for example, 

over the last 100 years. When John Graham came revised—(inaudible)—and lowered the number again to 3 percent, which also takes 

into account the time preference of consumption. So we have lowered those numbers over time. 

So I agree that cost-benefit analysis can be misused. You can 

find many examples of how it’s been misused, but it’s just a tool. 

[Applause.] 

BILL HIRZY. I’m with the Professionals Union at EPA Headquarters. 

A comment to Rich Belzer’s suggestions on ways to improve the 

risk analysis of process: I agree with two out of the three that you 

recommended, and I can imagine you understand which one I don’t 

agree with. The idea of getting policymakers out of science is a 

great idea and scientists out of policymaking. But the idea that you 

could do risk analysis I presume in the private sector and have 

competition among these risk analyses to provide guidance for risk 

managers doesn’t make a whole lot of sense to me or to people that 

I represent. From this point, public policy is going to be developed 

based on these risk analysis. 

Right now what you have or the people you have doing that kind 

of work are civil servants who, as you well know, raised their hand, 

just as do people in the military and swear to support and defend 

the Constitution against all enemies, foreign and domestic. What 

we have had to do at EPA over the years to resist being suborned 

by risk managers who come to us and say give me scientific cover 

for this decision; I want to do X, Y, and Z, and you tell me, give 

me some science that does that. 

Our position as a union of defending people against that kind of 

thing is that we will not do that willingly. We will not suborn the 

constitutional process by which Congress passes a law, president 

signs it into effect, and the courts adjudicate the disputes that 

1337

arise over it. And what we do is give advice to people in the Executive Branch on how to proceed to fulfill their obligations when they 

take the oath also to support and defend the Constitution. We will 

not agree to violate the constitutional process by helping them violate the law and set regulations that simply do not comply with the 

law. 

The Food Quality Protection Act is one of the things that is on 

the table right now that we are involved in. And I can’t go into 

anymore details on that, but that to have anybody other than civil 

servants contributing to how the first cut of agencies are going to 

deal with risks, that doesn’t make a whole lot of sense to us. 

WARREN PRUNELLA. I’m with a consulting firm Econometrica. I 

was with the Consumer Products Safety Commission for years in 

the economic shop. And I am going to try and turn this into a question for you, Dr. Heinzerling. At the Consumer Product Safety 

Commission, we weren’t obligated to turn any of our analyses into 

OMB. We had commissioners that were for the most part never 

economists. And there was a lot of resistance to cost-benefit analysis just I guess in general. 

But we demonstrated to the commissioners that by looking at 

cost-benefit analysis, and especially concentrating on potential benefits in the health and safety area, by putting value on injuries, but 

putting value on life, showing what the potential benefits could be, 

by looking at all of the damages caused, dividing that by the number of products that were causing the damage in each particular 

case—and I can cite example after example—they saw that costbenefit analysis gave them an entre ́e to regulating a product because the engineers and the compliance people would look and see 

that a product could be fixed for much less than the damages being 

done, and compliance people could show that they could enforce a 

rule. And cost-benefit analysis at the Consumer Product Safety 

Commission actually led to regulations. It didn’t discourage regulation; they actually showed the potential for having a regulation, especially since we have performance standards rather than design 

standards. 

And my question then is won’t you reconsider? 

Ms. HEINZERLING. (Chuckles.) What you consider? I think in the 

safety field there may be some technical difference, which is that 

my guess is you weren’t doing a lot of discounting of future benefits 

at that time. That is a lot of what dooms health and safety regulation, health and environmental regulation is the discounting technique. The other thing I would say with all respect is the Consumer Product Safety Commission has not been as aggressive perhaps as other agencies. And if you started to get aggressive, my 

guess is those benefits would go down. In other words, we see pressure to lower benefits when the benefits appear high. I meant it 

when I said I thought it was a political exercise. 

Mr. BELZER. Could I respond to what I think were a couple of 

questions in those few monologues but I’m not entirely sure. 

One of the myths about OMB is that OMB does cost-benefit analysis. It doesn’t. It reviews the work products of federal agencies. 

That is a fundamental difference. If you don’t like the work product, don’t look at OMB. It is just they are a review—do a review 

function; they don’t do original work except at the margin, like 

1338

when John was trying to fill in the gaps on these reports to Congress. 

Another thing I need to point out is that I got into this field in 

the early 1970s from an entirely different perspective than I guess 

I am presumed to be here now. The advocates for benefit cost analysis in the early 1970s were all environmental groups. And the topics that were of interest were federal projects: Bureau of Reclamation projects, Corps of Engineers projects, nuclear power plants, 

you name it. And the same kind of complaints that many people 

make today about errors in benefit cost analysis were made then 

too, and there was a reason for it, and I think I have tried to hit 

on that. 

But the same reason that the Bureau of Reclamation in 1968 was 

not a good authority on what the costs and benefits were for a 

damn, a modern social regulatory agency like EPA or OSHA or 

FDA is hard pressed to do an objective analysis of the costs and 

benefits or risks of its own worth. It’s just inherently conflicted, 

and the same problems that environmentalists like me were complaining about in the early 1970s are just back in a different form 

today. 

Mr. MORALL. Can I make just one more quick point about the 

utility of benefit cost analysis, and that is that if you look at our 

report to Congress on the cost and benefits of regulation that we 

have done over six or seven years—and I think actually Lisa was 

a peer reviewer of one of them. If you look at the costs and benefits, you’ll see that over the last 13 years, back to 1992—how many 

years that is—that is how far I would be able to go back with both 

costs and benefits looking at it very carefully—we have provided 

benefits to the public twice as high as the costs. And this has been 

especially—true in the Bush I administration, in the Clinton administration, and in this Administration. 

Most of the benefits of the regulations come from environmental 

regulations, especially in the fine PM area, in cardiovascular. And 

if you look at that and you see that clearly there are huge benefits 

that can be shown from environmental regulation, you should not 

be so critical of benefit cost analysis applied to environmental regulations. In fact, we are severely criticized by people from the right 

like Rick Belzer for overestimating the benefits. And the agencies 

of course do the estimates, but we sign onto them; we probe them; 

we ask them when they issued the regulations in the OIRA, we 

have agreed that those are the best estimates we can come up 

with. 

Ms. HEINZERLING. May I just say something? 

Mr. BELZER. The problem is that they are the only estimates that 

you have. The only estimates that you have come from the regulatory agencies that are responsible for the programs, and my position has not been right or left; it’s just those estimates are not reliable. 

Ms. HEINZERLING. Can I just give two responses? One is to Rick’s 

point about the estimates coming from the agencies. With the increased aggressiveness of John Graham, those numbers increasingly are helped on by OMB rather than simply being the product 

of agencies doing what they want. 

1339

And the second point about the OMB reports that John Morall 

was talking about, those show very clearly that one of the things 

that we can do that has the best cost-benefit profile is to regulate 

particulate matter, pollution. That is why it was so surprising to 

me that there was no cost-benefit analysis done of relaxing the 

New Source Review (NSR) rules, which would have brought that 

kind of pollution down. 

MARK POWELL. I’m with the USDA Office of Risk Assessment 

and Cost-Benefit Analysis. I would agree that cost-benefit analysis 

obviously is a useful tool. As it would so happen, however, under 

various statutes, it’s not one that can be legitimately considered. 

One case in point in particular is under international trade agreements, we are not allowed to consider the competitive economic impacts to domestic producers. So by requiring the generation of that 

sort of information, it calls into legitimacy your decisions based on 

consideration of evidence that you are not supposed to consider 

under the agreement. 

A similar argument I imagine could be made under the National 

Ambient Air Quality Standards where economic information is intended to be excluded from the consideration at the point of setting 

the standard. So it is potentially useful information, however, 

sometimes the law says otherwise. 

UNKNOWN SPEAKER. Was that a question, could you pick it up 

because it’s really difficult to hear. This room is built (inaudible). 

Ms. HEINZERLING. I think he was saying that sometimes costbenefit analysis is useful but not legally allowed. 

UNKNOWN SPEAKER. No, no—not legally allowed to be used. 

UNKNOWN SPEAKER. Well, more that anything, that raises questions about the legitimacy of the decisions. If you we demand that 

they estimate competitive impacts under our trade agreements— say that that cannot be considered, a decisions (inaudible) why did 

you generate that analysis if I’m not permitted (inaudible). 

Ms. HEINZERLING. Interesting. 

UNKNOWN SPEAKER. I just want to respond to the point that, 

Lisa, you made about the accuracy of cost-benefit analysis. I want 

to invite you to re-look at recent cost-benefit analysis. We do use 

probabilistic-type work now where we do identify the uncertainty 

in our analyses, so we are often giving a range. Most of the uncertainty that we see in cost-benefit analysis actually is incorporated 

from risk assessments. I recall one risk assessment I saw where depending upon which mathematical model you picked in order to extrapolate the dose response function, there were 22 orders of magnitude of uncertainty. I guarantee you for all of the other elements 

that go into a cost-benefit analysis we have uncertainty that is 

nothing like that. We really don’t make the numbers up. 

Ms. HEINZERLING. Well, I would say that the numbers, the range 

of disagreement that is allowed among the core of economic analysts seems very small to me. The value of life is between 5 and 

$7.2 million or something—discount rates of between 3 and 7 percent, that the range of disagreement that is allowed and allows you 

to speak with any authority within that community I think is very 

small. I don’t think that has to do with science; I think it has to 

do with a different kind of creed. 

UNKNOWN SPEAKER. (Inaudible.) 

1340

Ms. HEINZERLING. If you include in cost-benefit analyses, judging 

people’s value of risk—for example, many times people will say 

parents—you will ask them, well, would you buy a more dangerous 

product if we gave you a discount? In other words, would you accept a greater risk in return effectively for compensation and they 

will say no. Are those votes included in cost-benefit analyses? No. 

And so to me the range would be much greater if we included a 

larger range of response from the potential population at risk. 

Mr. MORALL. Actually, just to correct you—(inaudible)—A-4 suggests that you can use the value of life from 1 million to $10 million, and if you have good reason to think that it’s above or lower 

that then you can make a case for that too. And you can also use 

a lower discount rate than 3 percent. It is all up to the agencies 

to make the case. 

Ms. LANGBEIN. Thank you very much. Just one final point to conclude, that it’s important in addition to considering economic factors, but also to underline what Bob O’Connor said. And this is also 

backed up by science and experiments is that fairness counts. 

UNKNOWN SPEAKER. Thank you very much and there is (inaudible). 

[Applause.] 

CURTIS COPELAND. As this panel leaves, it’s my pleasure to introduce the last speaker of the day, with a congressional perspective. 

Can you hear me? In the last 16 speakers, the last 16 speakers, 

there has not been a congressional perspective. And so it’s my 

pleasure to introduce Ray Smietanka as the last speaker of the 

day. 

He is Chief Counsel for the Subcommittee on Commercial and 

Administrative Law of the House Judiciary Committee; the person 

who is really responsible for this whole session today. His ideas 

and those of his staff are the people who really were the impetus 

for this. Ray has served as counsel on the Judiciary Committee 

since 1975. He has a B.A. from DePaul, an M.S. in journalism from 

Northwestern, and has a law degree from John Marshall Law 

School. Before law school, he worked as a reporter for the Benton 

Harbor Michigan News Palladium, and as a combat correspondent 

for the Army in Vietnam. 

Please join me in welcoming Ray Smietanka. 

[Applause.] 

RAYMOND V. SMIETANKA. Thank you very much, Curtis. I really 

appreciate it. And I have had a very enlightening day, morning, 

and afternoon here. I almost feel bad following such a lively and 

interesting discussion because I know mine probably won’t be as 

good as theirs. 

I also feel so unaccomplished listening to all of the people that 

have come before me. I have nothing to sell on Amazon. 

[Laughter.] 

Mr. SMIETANKA. But I will have some baseball cards on eBay 

soon. And I have not been published in the Harvard Law Journal, 

but I have been published, as Curtis said in the Benton Harbor 

Michigan News Palladium, maybe about the same circulation? I 

don’t know. 

[Laughter, applause.] 

1341

Mr. SMIETANKA. I also want to thank you all today for our staff 

on the Subcommittee who have stayed here all day and have been 

fascinated by this discussion because it’s going to be so useful for 

us in our work in the next few months—Susan Jensen, Brenda 

Hankins, and Mike Lenn. 

In the ideal world, people with experience and good ideas make 

recommendations that are recognized for their merit and adopted 

without question. Of course in the ideal world, people with experience have either had the same experience, have had the same perspective on their different experience, or are persuaded by sound 

and convincing argument—come to the same conclusions whatever 

their experiences are. The Congress is different—not better, not 

worst, just different. 

Members of Congress are neither experienced in everything, nor 

do they bring to their different experiences the same perspective. 

One would hope that they can be persuaded by sound and convincing argument to reach the same conclusions but that does not 

always happen. What one congressman or senator finds sound and 

convincing may not appear that way to another who has different 

constituencies, interests, and priorities. 

And because politics is a science of governing and Congress is a 

representative body that does that governing, it melds the interests 

of vastly diverse regions and groups, balancing those interests, and 

it’s a continuous proposition that sometimes trumps sound convincing argument. What we on the House Judiciary Committee 

have been seeking to do for the past year with the help of Mort 

Rosenberg and Curtis Copeland at the CRS, and all of you here 

today—thank you very much again—is to help improve the rules 

which govern the administrative process. 

It has been well over a half-a-century since the Administrative 

Procedure Act was passed into law, and nothing goes that long 

without profiting from analysis and improvement. During the period of time we have had, the APA, we have had six amendments 

to the Constitution. The electorate has seven times shifted the executive branch from one party to another. Major legislative reforms 

have been adopted to virtually every aspect of our nation’s life. And 

if that hasn’t been enough, football now has sudden death, college 

basketball a shot clock, and major league baseball, at least the 

American league, has a designated hitter. 

Commentators have identified three dimensions to politics which 

must be considered in proposing change: decision making, agenda 

setting, and preference shaping. What we are doing here is relevant to all three, but in each still resides challenges to ultimate 

achievement. What the Committee on the Judiciary hopes to accomplish is to solicit the best thought and analysis possible on improvements to the APA in different areas such as we discussed 

today and to translate these sound and convincing arguments for 

improvement that can sail between the Scylla and Charybdis of the 

legislative process. 

First we seek to collect consensus proposals that would guarantee an easy mid-channel passage through the process. The fact 

that there is a consensus might ensure their adoption by the Congress. Second, issues of more substance may require action by the 

next Congress. And finally issues that cannot be agreed upon so 

1342

easily may need further study and presentation to a later Congress 

by reconstituted Administrative Conference of the United States, a 

body that hopefully can be fully funded and operating at the end 

of this year. 

As we all know—it was referred to today—the Committee was instrumental in reauthorizing the Administrative Conference during 

the last Congress and hopefully it will be a fully funded and operating body by the end of the year considering many of the issues 

that we discussed here today. 

[Applause.] 

Mr. SMIETANKA. When we undertook this project at the direction 

of Chairman Sensenbrenner of the Committee, with the bipartisan 

support of the rest of the Committee, we recognized that politics affects everything in government, and administrative procedure is 

how government most directly affects most Americans, be it 

through the Internal Revenue Service, the Environmental Protection Agency, the Department of Agriculture, whatever. 

We hope to improve the process for every American, and do not 

intend in our project now to decide the politics for any American. 

Recognizing and structuring the role of science in making rules can 

improve the process whereby rules are developed without influencing what exactly those rules are. Process and substance, these 

are distinct but related. Improving process can only improve the 

substance of the ultimate product. That is what we hope to achieve 

today here and the efforts that we put into it have been bolstered 

by what we heard. 

Finally, we wish to extend our thanks to Neil Kerwin at the 

American University’s Center for the Study of Rulemaking for 

helping make this event possible, and thank all of the presenters 

who preceded me. I feel after getting their views, their experience, 

their suggestions, it’s—I feel like for me—and the least shall be 

last. Thank you very much. 

[Applause.] 

Mr. COPELAND. Well, I have the dubious honor of doing the concluding remarks. Neil Kerwin came up to me in the last session 

and said that he was unavoidably detained. And I will make three 

very brief statements, actually four. 

One, Richard Parker just suggested that if we really wanted to 

get ACUS funded maybe we could get Jim Tozzi, to put a rider on 

an appropriations bill, which I thought was a good idea. 

The transcript of this session today will be available on the Center for the Study of Rulemaking’s website probably in fairly short 

order. They turned the last one around fairly quickly. So check 

back with the website. You will be able to get a transcript of this 

as well as the PowerPoint presentations that were given today. 

Second, as was mentioned earlier, questions can be submitted to 

me or Mort or to the Committee or to the Center. If you have other 

questions that you didn’t get a chance to ask, feel free to raise 

them and we will strive to get answers to them. Finally the thank 

yous—we mentioned Neil Kerwin. When you’re interim president of 

the university you get a chance to offer a building like this, and 

it’s truly fabulous. 

Heather Cohen who has been sitting out at the table outside here 

all day. She and I were the first ones here a little before 8:00 this 

1343

morning. For a grad student, that is quite a thing to get here before 8:00. But everything, every little detail that you have enjoyed 

today from the nametags that are on your lapels to the coffee and 

things outside, and the fact that you got an invitation to this is because of Heather. So she deserves a big thanks. 

[Applause.] 

MR. COPELAND. And finally I want to thank you for coming. It’s 

been a great day and I appreciate your attendance and all of the 

great questions. Thank you. 

[Applause.] 

1345

CONGRESSIONAL RESEARCH SERVICE (CRS) 

SYMPOSIUM: PRESIDENTIAL, CONGRESSIONAL, AND JUDICIAL CONTROL OF RULEMAKING 

MONDAY, SEPTEMBER 11, 2006

Introduction/Welcome: 

Dan Mulhollan, Director, Congressional Research Service

Panel 1: 

CONFLICTING CLAIMS OF CONGRESSIONAL AND EXECUTIVE 

BRANCH LEGAL AUTHORITY OVER RULEMAKING

Moderator/Introduction: 

Morton Rosenberg, Congressional Research Service

Panelists: 

Cynthia R. Farina, Cornell Law School

Kevin M. Stack, Cordoza School of Law

DAN MULHOLLAN. Good morning, everybody. I’m Dan Mulhollan, 

director of the Congressional Research Service, and I want to take 

a moment just to welcome you to this all-day symposium on presidential congressional and judicial control of agency rulemaking. I 

say it’s to you all’s credit that you’re willing to roll up your sleeves 

for the day and take a look at this very important issue. 

The process of developing or framing rules is viewed by some as 

central to the definition and implementation of public policy in the 

United States. So I think it’s critical that in fact this event take 

place, and we’re happy to sponsor this symposium as part of the 

House Judiciary Committee’s bipartisan 2-year project on administrative law process and procedure. 

I was taking a look and I thought that I would share this quote 

with you from Robert Jackson that many of you are quite familiar 

with. Justice Jackson said, ‘‘It is hardly lack of due process for the 

Government to regulate that which it subsidizes.’’ At the Judiciary 

Committee’s request, Mort Rosenberg and T.J. Halstead from our 

American Law Division, and Curtis Copeland from our Government 

Finance Division, have been working with the committee during 

the past 2 years to organize symposia, hearings, and original research on such topics as ‘‘The Role of Science in Rulemaking,’’ ‘‘The 

Status and Promise of Electronic Rulemaking,’’ ‘‘Judicial Review of 

Rulemaking,’’ ‘‘The Implementation of the Congressional Review 

Act’’—we all bow—and ‘‘The Nature and Extent of Public Participation before Rules Are Published in the Federal Register.’’

Currently, CRS is sponsoring a number of projects with public 

policy schools across the country, and one I’m particularly interested in is on the role of science advisory committees in the public 

policy process at the Maxwell School at Syracuse. 

The culmination of the committee’s project will be the preparation of a detailed report with recommendations for legislative proVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 01345 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230
1346

posals in suggested areas for further research and analysis. For 

those of you in the universities, I really wish you particularly 

would pay attention because there is a great deal of fodder here 

and the previous studies that have taken place for a master’s and 

doctoral thesis in a number of areas, including some good law review examinations. So please pay attention to that avenue as well. 

The transcript of today’s symposium will be part of that report. 

Mort, T.J., and Curtis have assembled a great group of scholars, 

experts and practitioners for today’s session. It’s a unique opportunity for you to hear and ask questions of some of the country’s 

leading experts in the area of administrative law and practice. 

In addition, I would like to recognize Justin Paulhamus and Angela Harris for their help in arranging the logistics for this symposium, and my colleague Bob Nickel as well. 

Have a great day, and I’ll turn over now to Mort Rosenberg. 

MORTON ROSENBERG. Thank you. 

[Applause.] 

Mr. ROSENBERG. Thank you, Dan. 

Before we start I think it’s appropriate that we take a moment 

of silence in remembrance and recognition of the losses of the victims of the 9/11 tragedy that occurred about this time 5 years ago. 

(Pause.) Thank you. 

This symposium is the culminating event in a very unique bipartisan study project that Dan mentioned, that was initiated by the 

House Judiciary Committee leadership and the Subcommittee on 

Commercial and Administrative Law. The committee was concerned that in the last decade, a period coincident with the absence 

of the Administrative Conference of the United States, many issues 

of administrative law process and procedure had emerged that 

have not been properly addressed or even properly identified. 

At the beginning of the 109th Congress the committee put at the 

top of its oversight agenda the identification and study of such 

emergent issues, and put CRS in charge of developing the study. 

Its most important directive was to eschew the normal hearing or 

study commission process and to gather the necessary information 

for legislative action through empirical studies conducted by seasoned scholars, and through symposia with participants representing the diverse views of academia, public interest groups, the 

business community and Government. 

Curtis Copeland, T.J. Halstead and I have adhered to that directive and have come to believe it to be a model of oversight that 

should be replicated when possible. Rather than the hit-and-run of 

the typical oversight exercise, we have been able to explore and utilize the wealth of research and informational resources readily 

available to Capitol Hill. 

I’ve characterized the symposium as a culminating event not because it will provide definitive answers or resolutions for the administrative law and process issues we are just beginning to identify, explore and understand, but because it addresses the fundamental question of who will resolve those issues and how? Who 

controls decision making in the administrative bureaucracy—the 

President, Congress or the courts? And what kind of balance should 

there be if there isn’t that right now? 

1347

Our first panel will discuss the competing claims of congressional 

and presidential authority over rulemaking. I mentioned that our 

mandate in setting up these forums has been to ensure diversity 

of academic, public interest, private sector and governmental viewpoints on the subjects we have covered—we are going to cover. This 

has been true today except for this panel. Despite some 20 overtures and invitations to academics and former and current executive branch officials we were unable to obtain a single firm commitment to present the Presidential authority position. Rather than 

cancel this important panel and go on without hearing the views 

of the two panelists who made early commitments and long preparation for this program, we prevailed on one of my fellow coordinators of this project, T.J. Halstead, to step into the breech. 

On Friday afternoon T.J. was celebrating the completion of his 

eighth year of his already distinguished career with the American 

Law Division. A graduate of the University of Kansas Law School, 

he has established his reputation on the Hill for excellence in the 

areas of administrative law, separation of powers, recess appointments, the vagaries of the Second Amendment, and most often esoteric legal matters that nobody else in the division has the heart 

to take on. He’s the reason I stick around and have stuck around 

for so long. 

T.J will lead off and will be followed by Cynthia Farina and then 

Kevin Stack, whose biographies I will give when their turns come. 

Also volunteering to be on this panel as a non-speaking but interested member and observer of presidential authority is Professor 

Peter Strauss. 

T.J. 

T.J. HALSTEAD. Thank you, Mort. 

As Mort just indicated, I’ll be spending the next few minutes giving an overview of the various factors—constitutional, statutory, 

and pragmatic—that form the basis of the assertion, on one hand, 

that the President alone is accountable for executing Federal law 

and possesses the authority to control its administration, and on 

the other that the President possesses extensive authority to control the administration of agency regulatory efforts by virtue of an 

implicit vesting of such authority in the President by statute. 

Regarding the former category, this principle is a component of 

what has come to be called the unitary executive theory, which posits that the President, by virtue of his position as the only nationally elected official of the Federal Government, possesses broad supervisory and managerial powers over, as well as an encompassing 

political presence in, all administrative agencies. 

In particular, this theory maintains that the President’s constitutional authority to see that the laws are faithfully executed vests 

the chief executive with the responsibility and substantive authority to control every aspect of the workings of the executive branch, 

to set priorities, allocate resources, balance competing policy goals 

and resolve conflicts over agency jurisdiction and responsibilities 

extending to the point of imbuing the President with inherent authority to direct the actions of subordinate executive branch officials and employees, even in instances where congressional enactments do not explicitly grant such authority to the President. 

1348

Attorney General Cushing expounded upon this conception of 

presidential authority in the middle of the 19th century, declaring 

that the Constitution places all executive officers under the control 

of the President, and that no head of an executive department who 

possesses statutorily granted authority can lawfully perform an official act against the will of the President. And this conception of 

presidential authority has largely been followed by attorneys general to the modern day. And proponents of the unitary executive 

theory likewise point to the holding and broad dicta in the Supreme Court’s 1926 removal decision in Myers v. United States as 

an implicit judicial validation of the maxims comprising the unitary executive theory. 

The impact of the unitary executive theory in the regulatory context comes into relief when we consider the manner in which the 

nature of congressional delegations of authority has shifted during 

the evolution of the modern administrative state. Even the most 

strident proponents of executive authority acknowledge that the 

President’s power to control and direct the administration of law by 

executive branch officials is bounded by the dictates of the statutory provision at issue, as I’ll touch on in more detail shortly. 

Professor Prakash of the San Diego University Law School has 

forwarded a theory of the President as chief administrator of the 

executive branch, arguing that both historical evidence and the text 

of the Constitution established that the President has the ultimate 

authority to control the exercise of any discretion that has been 

granted to any executive branch official. Even Professor Prakash, 

however, concedes that where a statute commands an executive officer to perform a non-discretionary or ministerial function, the 

President cannot then order the official to ignore that congressional 

mandate. 

Prior to the New Deal, this dynamic enabled Congress to supervise and control administrative action taken by executive agencies 

through the issuance of specific and clearly delineated delegations 

of authority to those agencies; such as was the case, for example, 

arguably, with the Interstate Commerce Act, which is widely 

viewed and held up as a model of congressional enactment that 

makes a detailed and well-bounded grant of authority to an executive agency. However, concordant with the rise of the administrative state, an ever-increasing number of statutes that authorized 

agency action contained open-ended grants of authority that essentially left the resolution of significant public policy questions to 

agency discretion. 

The motivation for Congress to delegate away large swaths of its 

policy making authority can alternately be ascribed to a recognition 

on the part of Congress that it lacked the knowledge or capacity 

to respond fully to issues arising from modernization or to an inability to reach consensus on legislative minutia, given constraints 

on congressional resources and the increasing diversity of interests 

represented in Congress. 

Whatever factors can be cited for this development, the practical 

effect of these broad delegations of authority was to allow Presidents to use the principles of the unitary executive theory as a 

wedge to assert determinative control over the substance of agency 

1349

rulemaking efforts from both a textual and pragmatic vantage 

point. 

Regarding the textual position for the chief administrator or chief 

executive theory of presidential power, legal scholars—again, such 

as Professor Prakash, Steven Calabresi and Christopher Yoo, 

among others—have asserted that an analysis of the historical and 

textual foundations of the Constitution necessarily leads to the conclusion that the President possesses the authority to execute the 

law himself and to control the execution of the law by other governmental actors. 

In support of this proposition, these scholars give operative effect 

to the general vesting of executive authority in the President, such 

as in the take care clause and the opinions clause, and concordantly and concurrently assert that the necessary and proper clause 

does not in fact give Congress the power to vest an executive officer 

or department with independent power but instead permits Congress to enact legislation that aids the President’s efforts to exercise his constitutional powers including the execution of the laws. 

This conceptual framework undergirded President Reagan’s efforts to embed unitary principles in the regulatory context by 

issuing Executive Orders 12291 and 12498, centralizing control of 

agency rulemaking in the Office of Management and Budget 

through a review and clearance procedure that gave the President 

a significant and arguably unprecedented degree of control over 

agency rulemaking efforts. 

It’s not surprising that this review process generated a significant degree of criticism and controversy largely centering on a perceived anti-regulatory bias, as well as a conception that the order 

constituted an unlawful transfer of power from the agencies to the 

President via the Office of Management and Budget. 

The Department of Justice’s Office of Legal Counsel responded to 

this legal argument asserting that the provisions of the order were 

valid, again, as an exercise of the President’s power to take care 

that the laws be faithfully executed. Additionally, this OLC opinion 

argued that an inquiry into congressional intent in enacting statutes delegating rulemaking authority will usually support the legality of presidential supervision of rulemaking by executive agencies. 

Many of the concerns voiced over the effect of the Reagan orders 

were at least temporarily assuaged by the more transparent review 

regime established by President Clinton with Executive Order 

12866, but it rapidly became apparent that President Clinton was 

exercising a degree of control over agency rulemaking that rivaled—and in many ways surpassed—the Reagan- and Bush-era 

efforts in this context. 

President Clinton asserted a greater degree of authority over the 

independent agencies by including them in the regulatory planning 

process, and he was also more active in issuing directives to agency 

heads concerning how he felt they should exercise their discretionary authority, issuing 107 such orders compared to just 12 

throughout the Reagan and Bush administrations. 

President Clinton’s control over the rulemaking process extended 

so far as to result in his affirmatively proposing rules prior to any 

such announcement by the jurisdictional agency involved. The best 

1350

example of this was his 1995 announcement that by executive authority he would restrict the marketing and promotion of tobacco 

products to teenagers and that he was authorizing the FDA to take 

steps to achieve that goal. The formulation and promulgation of 

that rule never departed substantively from the President’s initial 

proposal, and I think it’s a good example of a President essentially 

asserting ownership of agency rulemaking action. 

Dean Elena Kagan of the Harvard Law School has described the 

assertions of authority and the actions taken by President Clinton 

as supportive of her general theory of presidential administration, 

which posits that when Congress delegates administrative and law 

making powers specifically to department and agency heads, it is 

concurrently making an implicit delegation of those authorities to 

the President unless the legislative declaration specifically states 

otherwise, largely on the basis of her belief that this approach is 

the closest reflection of the intent and understanding of Congress, 

and also because of the attendant practical benefits she sees arising from that dynamic. Dean Kagan goes on to assert that this dynamic gives rise to the President’s constitutional prerogative to supervise, direct and control the discretionary actions of all executive 

branch officials. 

It’s interesting to note, I think, that Dean Kagan’s theory of presidential administration explicitly rejects the constitutional basis for 

unitary control of the regulatory state, instead relying upon policy 

rationales and principles of statutory interpretation to support 

presidential control of agency action. Despite this distinction, it 

seems apparent that this theory of presidential administration is a 

unitarian one in practical, if not doctrinal, effect. 

As I mentioned a few minutes ago, the Clinton regulatory planning and review order included independent agencies within its 

ambit to a degree that the Reagan orders did not. And the order 

also went further than the Reagan orders by implicitly asserting 

the ultimate authority to displace the judgment of agency officials. 

So while the underpinnings of the Reagan and Clinton orders are 

arguably based ultimately on constitutional authority and principles of statutory interpretation, the practical effect of both approaches has been to centralize control of the administrative process within the Office of Management and Budget in the Executive 

Office of the President to a significant and fundamental degree. 

And a survey of the practices of the current administration I 

think indicates that while President Bush has a strongly unitarian 

conception of presidential power, his administration’s actions in the 

regulatory context, and its attendant posture toward Congress can 

likewise be seen as being informed by the theories of Dean Kagan. 

I think it’s also significant to note that both the unitarian and 

presidential administration models of presidential control over 

agency rulemaking appear to be motivated not only by similar conceptions of presidential authority, but also by a belief that centralized presidential control of agency rulemaking promotes regulatory 

effectiveness and accountability. 

Proponents of the unitarian conception of authority, such as Professor Calabresi, have asserted the President’s unique role as the 

only nationally elected official coupled with the expansive authority 

vested in him by the Constitution, imbues him with the singular 

1351

authority to speak for the American people and to ensure that the 

will of the majority prevails over competing parochial interests that 

he feels prevent effective collaborative action by Congress. 

Coupled with this notion of accountability to the populace, Professor Calabresi has additionally asserted that the power enjoyed 

by the President in this context likewise allows him to maximize 

regulatory efficiency by exercising coordinative and managerial 

power over agency rulemaking efforts. 

This rationale mirrors the converse, arguably, pragmatic case 

that Dean Kagan forwards in support of aggressive presidential administration. In particular, Dean Kagan asserts that presidential 

leadership makes the regulatory process more transparent and understandable to the public, which in turn establishes an electoral 

link between the bureaucracy and the electorate. 

Dean Kagan has asserted further that Presidential administration aids regulatory effectiveness in several ways, such as by allowing the executive branch to gauge cost effectiveness to allow for the 

setting of regulatory priorities and to ensure consistency across the 

spectrum of executive branch regulatory efforts. 

Ultimately, proponents of both the theory of presidential administration and the unitary executive conception of Article II power 

have forwarded robust claims of presidential authority to control 

and direct agency rulemaking activity, and the substantive actions 

taken by every president from Reagan onwards have effectively entrenched these claims to the extent that Congress and the public 

have arguably become inured to the notion that the President may 

exercise his prerogatives in this context to exert significant and oftentimes determinative authority over the agency rulemaking process. 

At this point I’ll turn the discussion over to Professors Farina 

and Stack, who will rapidly disabuse you of the benefits of this approach, I presume. 

[Laughter.] 

[Applause.] 

Mr. ROSENBERG. Our next speaker will be Professor Cynthia Farina. Cynthia is a professor of law and associate dean at the Cornell Law School, and is a nationally recognized authority on administrative law and related jurisprudence. 

Following her graduation from Boston University Law School she 

clerked with the Honorable Raymond J. Pettine, the chief judge for 

the United States District Court of Rhode Island, and with the 

Honorable Spottswood Robinson III, chief judge of the United 

States Court of Appeals for the D.C. Circuit. She spent 3 years as 

a litigator in a private practice before joining the Cornell Law facility. Her scholarship and teaching focuses on administrative law, 

the Federal courts, due process and separation of powers. And Professor Farina is the co-author of a leading administrative law casebook and advises with the American Bar Association on issues of 

administrative law and practice. 

Cynthia. 

CYNTHIA FARINA. Thank you, Mort. 

Good morning. Let me see if I can make the great technology 

here work. I would like to begin this morning with a story, not a 

once upon a time story because it happened this summer. The NaVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 01351 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230
1352

tional Ocean Service had been working for quite some time on a 

proposed marine sanctuary in the northwest Hawaiian Islands. The 

plan was for the President to have a news conference to announce 

the rulemaking that would finally set the configuration of the sanctuary and determine the use prohibitions within it. 

Now, we have 13 marine sanctuaries already; why a presidential 

appearance to launch this rulemaking? Well, this would be the 

largest conservation area under the U.S. flag, larger than all the 

country’s national parks combined—indeed, the largest marine conservation area in the world, home to more than 7,000 marine species, some of which are endangered, threatened, or rare. Being 

briefed for the event, the President apparently was impressed. And 

simply announcing the start of a notice and comment process isn’t 

really very much when you come right down to it. It’s sort of like 

telling everybody to stay tuned; there is going to be a ribbon cutting ceremony somewhere down the line. What’s the point of being 

the leader of the most powerful nation in the world if that is all 

you can do? 

But the National Marine Sanctuaries Act, enacted in 1972, 

amended and reauthorized six times since, is one of our most process-rich statutes going. There is tons of public stakeholder participation plus an unusually direct role for Congress. There is, however, also an older statute, the Antiquities Act of 1906, under 

which the President is authorized to declare, by public proclamation, historic landmarks, historic and pre-historic structures and 

other objects of historic or scientific interest that are situated upon 

the lands owned or controlled by the Government of the United 

States to be national monuments. 

And so on June 15, 2006, the President did not launch a rulemaking, but rather, by the stroke of a pen, created the Commerce 

Department’s first national monument. And in the words of the official press release, ‘‘set aside the largest marine conservation area 

on Earth.’’ To preserve and protect the 10 islands, atolls and marine life in 

the monument, the Presidential proclamation also took up the text 

that would have been in the notice and comment and made it Federal law: No person can pass through the monument without Federal permission; vessels must carry an approved vessel monitoring 

system and give notice when they leave the area; swimming, diving 

and other recreational uses are restricted; research access is regulated; all commercial fishing in the area with be phased out over 

5 years. Now, that’s strong presidential control over rulemaking. 

But this is a story with a happy ending, right? An exercise of 

presidential prerogative that immediately preserved an area of incredible ecological richness, and indeed of Hawaiian native cultural 

significance that is larger than 46 of our 50 states. 

I want to be clear that I’m not asserting that anything illegal 

happened here—although apparently it was a creative use of the 

Antiquities Act—but I do hope that if this story doesn’t make the 

hair on the back of your neck stand up, at least it gives you a 

slightly queasy feeling. 

I also want to be clear that I think it’s asking a great deal, if 

not the impossible, of a member of the executive branch, whether 

an appointed or a career person, to say to a president who is 

1353

champing at the bit for action, Mr. President, we are as anxious 

as you are to get this project going, and with your enthusiasm conveyed to the public and Congress we know this project will move 

forward expeditiously and confidently, but it’s important that we 

follow the process of the Sanctuaries Act and the APA through to 

the end. That process takes time and it takes money—maybe too 

much of both—but we get something in return. 

What do we get in return? Well, we don’t have the time here to 

go into the debate on whether and how much the current rulemaking process should be reformed. So I’m going to paint with a 

very broad brush in suggesting what you, Congress, and we, the 

people, get when the decision is made in a given statute that a certain set of public policy choices will be made through the rulemaking process by delegation to agencies rather than through the 

political process of legislation or direct delegation to Congress. 

Because of 40 years of court decisions about the rulemaking and 

judicial review provisions of the APA, agencies who undertake the 

notice and comment process know that they are functioning under 

two decisional paradigms that simply do not apply to Congress or 

the President as public policy makers: decisional transparency and 

legal rationality. You’re familiar with the principal elements in 

each of these. 

Now, again, let me be clear about what I am and am not saying 

here. First, these elements are relative, not absolute. No one would 

dispute that there is still a lot of ‘‘black box’’ and irrationality in 

rulemaking. The point is the relative difference between the administrative and the political processes on these points, which is huge, 

and was even occurring in the Clinton era. 

Second, you, Congress, do not have to choose rulemaking. Legal 

rationality is not the only kind of rationality that exists or has 

value to a society. Decisional transparency is not the highest and 

best good. But where you have chosen rulemaking, which in fact 

you have done for most social, economic, and environmental regulatory policy, the notion of strong presidential control that’s advocated by the unitary executive is fundamentally inconsistent with 

that choice. 

But what about the democracy argument for presidential control, 

that precisely because you have chosen rulemaking as the way 

America makes most social, economic and environmental regulatory policy, and because the President is the only official elected 

by the entire nation, strong presidential control over rulemaking is 

the only way to provide democratic legitimacy to that policy? 

Well, appealing as this may sound in theory, it runs into some 

problems with the real world facts. Now, to talk about those problems first I have to confess that the story I opened with was a bad 

one because it really was a story about the President controlling 

rulemaking when in fact presidential control over rulemaking is 

really a matter of control by the institution of the modern presidency. And we can take a brief detour to just two sets of statistics 

to see why. 

Now, the first of these comes from the White House website for 

the eRulemaking Initiative. These numbers, particularly the 8,000 

rules, seemed a bit high to me, but I guess these are the guys who 

ought to know, and you do get an idea of the order of magnitude. 

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Obviously a significant percentage of these 8,000 rules will not be 

highly or generally politically salient; many will be important only 

to a very narrow band of people or interests; although that does not 

necessarily mean that they won’t be important public policy decisions in their regulatory area. 

The second set of numbers is a very rough measure of the bureaucracy that, far more typically than in my story, will voice the 

President’s will in rulemaking, and obviously these don’t even include any layer in the Cabinet departments below the Secretary. 

Now, again, let me be clear about what I am not saying. I am 

not advocating here a bad-man theory of Government. I can posit 

1,800-plus highly competent people without ego or personal political ambition clouding their desire to discern and communicate the 

President’s will on regulatory policy issues, and still we will have 

substantial principal agent problems implementing the ideal of 

strong presidential control over rulemaking. 

But for the moment let’s make the heroic assumption that the 

small army of people who in the typical case will be the means of 

exerting presidential control over rulemaking, will be accurate 

channels of an actual adequately informed presidential judgment. 

What about the bedrock assumption of a democratic justification 

argument for presidential control? That when an electoral majority 

chose George Bush in 2004, they did so because they approved of 

his domestic public policy positions and wanted more of them. Let’s 

look at some data on that. 

Now, the first—first from the month preceding the 2004 presidential election—and these data are arranged as the year proceeds—(pause)—that final was after the debates. Lest you think 

that 2004 was a particularly bad year, let’s go back a cycle. As 

many of you probably know, the National Election Study has been 

done in some form since 1948 and is one of our most useful tools 

for monitoring public political knowledge about the election. Here 

are just a few of the high—or perhaps they’re the low—points of 

the 2000 election. Professor Ilya Somin of the George Mason Law 

School analyzed this data. 

Of the 31 questions asked in the 2000 NES, the average respondent got only about six more right than guessing, and three of the 

five most often gotten correct were the home states of Bush and 

Gore and Joe Lieberman’s religion—not clear that they have a lot 

of substantive policy content. 

Now, none of this is any surprise to political scientists and those 

familiar with the political science literature on elections and public 

opinion, or of course to the people who run political campaigns. 

And finally, even on the occasional public policy issues where all 

the stars are aligned—where the issue is salient in the election, the 

candidates have clear and divergent positions on it, a high percentage of the public cares about the issue and gets the candidates’ position on the issue right—there is still the problem that the enormous number of issues bundled together in presidential campaigns, 

only some of which are substantive issues, make it impossible to 

see the election outcome as a mandate to speak the will of the people in regulatory policy making. 

There’s actually a lot of data—survey data—on the stem cell 

issue. The Annenberg data is particularly good because the quesVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 01354 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230
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tion linked explicitly the use of stem cells with their source, human 

embryos. 

So where does all this leave the claim of the unitary executive 

theory to strong presidential control over rulemaking? Well, ultimately of course, there is the Constitution. And I’m pleased to compliment T.J. on his excellent summary of unitary executive theory, 

which I would love to have a copy of to use for my students. In my 

own view, arguments from the text—whether they’re from the Article II vesting clause or the take care clause or the necessary and 

proper clause or any other clause—are dispositive only if you already know where you want to come out. 

By contrast, considering the entire design, the way the origination and operation of our Government’s power structure plays out 

over and over, the answer seems to me fairly clear: The President 

should not control rulemaking any more than Congress should control rulemaking or the judiciary should control rulemaking. Each of 

the named constitutional actors should have an institutionally appropriate relationship of oversight, with the agency having primary 

responsibility for the rulemaking, an ongoing relationship in which 

none has the last word or the trump card, a relationship that situates rulemaking squarely within the norm for policy making in our 

system of Government. 

Our thinking about separation of powers has been historically 

dominated by two sets of metaphors: one, the images of endless 

conflict, the search for dominance. The classic description is in 

Madison’s Federalist 51. The other, the images of eternal paradox 

and the search for balance, best captured with Justice Jackson’s 

classic elegance in Youngstown. 

I want to close by suggesting a new image, one that I’ve been offering my students in the past couple of years in my separation of 

powers seminar. Now, this story has several versions—actually you 

can find many of them in Wikipedia. My favorite seems especially 

apt given the story that I began with today. 

A child asked the wise woman of his tribe, ‘‘Mother, what keeps 

the Earth from falling into the great darkness?’’ ‘‘My child, the 

Earth sits on the back of a great turtle.’’ ‘‘But, Mother, what does 

the turtle sit on?’’ ‘‘Another turtle.’’ ‘‘And what about that turtle?’’

‘‘There is yet another turtle.’’ The child thought for a moment, 

smiled and was content. And so it is with us. There is always another move in the separation of powers game. Authorization needs 

appropriation and must be followed by implementation, which requires interpretation and enforcement, and none of these can survive long without legitimization, which of course cannot take place 

without jurisdiction, which is another form of authorization, and so 

on it goes. 

Unless there is some catastrophic breach of constitutional faith, 

the sort of action that renders appeal to written constitution and 

separation of powers and checks and balances—futile—there is no 

last word, no end game. This is the genius of our system. No 

branch is or should be in control. It’s turtles all the way down. 

Thank you. 

[Applause.] 

Mr. ROSENBERG. Thank you, Cynthia. 

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The next speaker will be Kevin Stack. Kevin is an associate professor of law at Benjamin Cardozo School of Law at Yeshiva University, where he teaches administrative law, presidential power, 

statutory interpretation, and civil procedure. He received his law 

degree from Yale Law School and then a Master of Literature from 

Oxford University. He clerked for the Honorable Kimba Wood of 

the United States District for the Southern District of New York 

and the Honorable A. Wallace Tashima of the United States Court 

of Appeals for the Ninth Circuit. He practices as an associate at 

Jenner & Block in Washington and joined the Cardozo faculty in 

2002. 

Kevin’s most recent research has focused on the scope of the 

President’s statutory powers and judicial review of agency action. 

Articles in this areas include ‘‘The Statutory President’’, which was 

published in the Iowa Law Review in 2005, and an article that I 

commend to you, ‘‘The President’s Statutory Power to Administer 

Laws,’’ published in Columbia Law Review in May of 2006. This 

year he became a vice chair in the Separation of Powers Committee 

for the Administrative and Regulatory Practice Section of the 

American Bar Association. And Kevin’s going to talk to us about 

statutory construction and the unitary executive. 

Kevin. 

KEVIN M. STACK. Thanks a lot. It’s a pleasure to be here today. 

The question of conflicting claims of presidential and congressional control over rulemaking, as we’ve heard, is often played out 

in the realm of constitutional debate. That’s the location of the unitary executive debate and the stakes of the unitary executive debate are, I think, clear and familiar. For instance, defenders of the 

unitary executive position believe that independent agencies are 

unconstitutional infringements on executive powers. They also believe, as we’ve heard, the President has constitutional authority to 

direct all agency action, including rulemaking. But there’s another 

dimension for conflicting claims of control over agency action, and 

that’s the statutory dimension. 

In a statutory dimension the question is the extent to which the 

President has statutory authority to control agency action. This dimension has an immediacy and practicality to it because it begins 

with statutes currently on the books and asks to what extent they 

grant authority to the President to control agency action. So, for instance, suppose a statute grants rulemaking authority to the Secretary of Agriculture. To what extent does the President have statutory authority to control the exercise of discretion of the Secretary 

of Agriculture under that statute? 

My remarks today will focus on that statutory question. My 

points fall under two basic headings. First, I’m going to defend a 

relatively narrow view of the President’s statutory authority to direct agency action. I’ll argue that the President has statutory authority to direct agency action only under statutes that grant power 

to the President in name. The President does not have statutory 

authority to direct agency action but the statute grants authority 

to the agency, not the President. Second, I’m going to suggest a few 

implications and practical consequences of that statutory conclusion as well as its implications for the constitutional debate. 

1357

Okay, so turning to the first question, the scope of the President’s statutory power to direct agency action. This question, as T.J 

mentioned, is an old one for American public law, and the opinions 

of two 19th century attorneys general, I think, nicely illustrate the 

contrasting positions of the debate. So in the one corner, which is 

the corner I’m going to defend, there’s Attorney General William 

Wirt. In 1823, Wirt advocated the view that the grant of authority 

to an executive official is personal to that official and does not authorize the President to overrule the official. 

So here I’m going to quote Wirt. I think it’s worth quoting Wirt. ‘‘If the laws require a particular officer by name to perform a duty, 

not only is that officer bound to perform it, but no other officer can 

perform it without violating the law.’’ And Wirt goes on, ‘‘Were the 

President to perform it, not only would he be not taking care that 

the laws were faithfully executed, but he would be violating them 

himself.’’ Thus Attorney General Wirt clearly advances the view 

that a grant of authority to an executive official is personal to that 

official. 

In the other corner, a few decades later, Attorney General Caleb 

Cushing advocated precisely the opposite position. Cushing writes, 

‘‘No head of department can lawfully perform an official act against 

the will of the President. That will’’—that is, the President’s will, ‘‘is by the Constitution to govern the performance of all such acts.’’ Thus, I think we face a stark choice between a personal and a provisional view of delegation. In other words, when a statute grants 

power to an executive official, is the grant personal in the sense 

that it is to be performed by that official, or is it provisional in the 

sense that it can be performed by that official, but the official’s 

view may always be supplanted by the President? 

To be sure, there’s wide disagreement about methods of statutory 

interpretation, but statutory interpreters across the spectrum will 

agree that statutory text and statutory context are the starting 

point for statutory interpretation. And I think even those basic 

principles of statutory interpretation provide a strong argument 

against the provisional construction of delegation of authority to 

agency officials. 

The provisional view of delegation relies on the implication of 

statutory authority to the President. It reads ‘‘Secretary of Agriculture’’ to mean ‘‘Secretary of Agriculture subject to the control of 

the President.’’ That implied implication of statutory text might be 

plausible, I think, if Congress did not frequently enact statutes 

that said just that. Congress frequently enacts statutes that expressly grant power to an agency official subject to the control of 

the President. In view of those statutes, which I call mixed delegations, it’s much more difficult to read grants of powers to agency 

officials alone, as including, by implication, a grant of power to the 

President. 

Congress has been enacting these mixed delegations for quite 

some time, so here are two examples, one old and one currently on 

the books. The old one is a statute in 1828 that granted the Secretary of the Treasury authority under the direction of the President to establish rules and regulations to secure the just, faithful, 

and impartial appraisal of all goods. The law that’s currently on 

the books, Congress has granted the Secretary of Agriculture the 

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power to make rules regarding agricultural production with the approval of the President. In both, the Secretary is granted authority 

expressly subject to presidential control. So the claim, based on 

these mixed delegations, I think is relatively straightforward. They 

support a negative inference that when a statute grants power to 

an executive official, without mentioning the President, it should 

not include by implication a grant of power to the President, rather, when Congress seeks to create that structure of authority, 

granting authority to an executive official with oversight to the 

President, it can use and does use a mixed delegation. 

Of course, we normally interpret statutes one at a time and the 

strength of this basic inference will depend upon the proximity of 

a simple and mixed delegation of authority. I think the strongest 

case will be when a simple delegation to an agency official and a 

mixed delegation occur in the same statute. In that case, I think 

the President would have a difficult time saying that he has the 

same authority under the simple delegation to the agency official 

and under a delegation to the agency official, which also expressly 

grants some control to the President. 

The next strongest case, I think, are separate statutes that grant 

authority to the same official. In that case, I think the officials 

would rightly believe that they have different powers when they’re 

granted authority solely in their own names as opposed to when 

they’re granted authority subject to the supervision of the President. 

Finally, we might embrace a freestanding inference across statutes. I think there are special reasons why this freestanding negative inference should hold even if we’re suspicious as general matter about making cross-statutory inferences about congressional intent. At a practical level, the question of to whom to delegate authority is a recurrent question for Congress; it comes up every time 

Congress delegates authority. Congress is a repeat player in institutional design. That, I think, strengthens the grounds for making 

a presumption of congressional knowledge of this vocabulary of delegation. 

Interestingly, some political scientists have provided some quantitative proof for the way in which these questions of institutional 

design matter to Congress. For instance, Princeton’s David Lewis 

has shown that in periods of divided Government, Congress is more 

likely to insulate newly created agencies from presidential control 

through its design choices. That, I think, suggests special reasons 

to believe that Congress is particularly attentive and knowledgeable about delegation and therefore should be knowledgeable about 

its own vocabulary of delegation and that mixed delegations, therefore, should be understood as creating a kind of convention from 

which we can draw negative inferences. 

So let’s proceed for the moment with this statutory conclusion, 

that in view of mixed delegations the best reading of simple delegations to agency officials is that they are personal, not provisional. 

That, I think, has a number of immediate practical implications for 

the scope of the President’s statutory powers as well as for statutory interpretation within the executive branch. So most clearly, it 

means that the President has statutory authority to direct agency 

action only when the statute grants authority to the President in 

1359

name. As a result, the scope of the President’s power to review 

rulemakings should depend, in part, on the statutory recipient of 

authority. Thus, the OMB and OIRA should not have the same 

scope of authority to intervene in rulemaking when the statute 

grants authority to the President or grants authority to an executive official subject to presidential direction, as it does when a statute grants authority to an executive official alone. 

I think that this statutory conclusion also has implications for 

statutory interpretation within the executive branch. It certainly 

makes clear that an official who is vested with authority doesn’t 

have a statutory duty to comply with presidential directives. Thus, 

it creates the possibility for officials resisting the President’s view 

and, at least temporarily, a check on presidential power within the 

executive branch. Of course, that check is only going to be a temporary one; nothing I’ve said would prevent a president from firing 

the recalcitrant officer. But this conclusion does limit the President’s remedies with the official, either the President must be able 

to persuade the official or fire her, and that’s certainly raises the 

cost of disagreement for the President with the official. 

I don’t believe that this statutory construction unduly constrains 

the President. The President still has a wide variety of tools of influence over agency officials, from the selection of his preferred and 

loyal nominee to ex parte communications during the rulemaking 

process, to the threat of firing. Those tools create a strong structural assurance of presidential influence over rulemaking but this 

statutory conclusion does rule out the President’s claim of statutory 

authority to direct-agency action. 

I think the statutory conclusion also has implications for the constitutional debate. I just want to spell out two them. If, as I’ve been 

suggesting, the most natural reading of delegations to agency officials is that they do not grant the President directive authority, 

then proponents of a unitary executive position must do something 

if they wish to square their constitutional commitments with a fact 

that Congress has granted enormous authority and discretionary 

authority to agency officials. 

Proponents of a strong unitary position will be forced to claim 

that grants of authority to agency officials are ambiguous or sufficiently ambiguous as to whether they grant presidential oversight 

that their constitutional commitments should inform the interpretation to such an extent that they should be interpreted to imply 

presidential oversight. 

Depending on the strength of our confidence in these statutory 

conclusions, the implications could be stronger still. If we were to 

conclude that a delegation to an agency official was clear or unambiguous in not granting directive authority to the President, then 

the proponent of the unitary executive would have to claim that 

statutes granting authority to executive officials are themselves unconstitutional. That would give some pause to the constitutional 

position, which motivates such a far-reaching rewriting of the administrative state. 

In the end, what Congress might do with these statutory conclusions will depend on whether it seeks to enable or to create barriers to presidential control. But regardless of the aim in context, 

there are virtues of clarity when Congress makes express the strucVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 01359 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230
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tures of control that it seeks to create. For instance, if Congress 

seeks to grant presidential oversight then a mixed delegation is the 

obvious tool with which to do so. Likewise, if it seeks to require the 

President to act through particular officials, then mixed delegations 

can be put to that service as well. 

Thanks. 

[Applause.] 

Mr. ROSENBERG. Thank you Kevin. Before I open it up to the 

floor, which I hope will have a number of questions, Peter, do you 

want to make some extemporaneous remarks on either side or in 

the middle? 

Peter Strauss, for those who just don’t know for some reason, is 

a professor of law at Columbia University and is an icon in administrative law and process and has been so for many decades. 

PETER STRAUSS. And one of the things he’s happiest about is 

making Cynthia Farina one of those co-authors of a noted administrative of law case book. 

[Laughter.] 

Mr. STRAUSS. I thought—well, one moment. I want to get my 

constitutional text and something else. So, I thought it might be 

helpful to do a couple of things. One of them is just to read. I’m 

sorry I don’t have it on PowerPoint but just to read the constitutional text around which these debates occur. So, obviously, the 

first one is the first line of Article 2, the executive power shall be 

vested in the President of the United States of America and then 

it goes on for quite a while telling us how he should be elected and 

what else he should take and finally gets to such things as it says 

about what his authority is, unambiguously, he shall be the Commander in Chief of the Army and Navy. 

In relationship to the rest of Government, these are its words. 

‘‘He may require the opinion in writing of the principal officer in 

each of the executive departments upon any subject relating to the 

duties of their respective offices.’’ Now there are a number of things 

to remark about this rather weak formula. 

One of them is that it’s one of only two places in the Constitution 

that actually refer to the Government as distinct from the President; that is, the executive departments which may have heads. I 

guess three places because, in the appointments clause, he gets to 

appoint the heads of departments, and then in the necessary and 

proper clause of the Constitution it talks about making all laws 

which shall be necessary and proper for carrying into execution the 

foregoing power and all other powers vested by this Constitution in 

the Government of the United States or in any department or officer thereof. 

So the Constitution clearly contemplates that powers may be 

vested in departments or officers but it seems to contemplate that 

will happen in the Constitution. This is one of those unusual relics 

of how hot it was in August of 1787—— [Laughter.] 

Mr. STRAUSS. —and how anxious the delegates were to get away 

from Philadelphia. They didn’t really neaten up their document in 

the way they should have. It reflects some earlier provisions that 

actually had listed seven different departments and given them responsibilities. But I think we can see in these texts the contemplaVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 01360 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230
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tion that there will be officers of Government and that they will 

have duties. And the question which is concerning us is what is the 

relationship of the President and to whom is vested the executive 

power of the United States to those duties that may be vested in 

departments, under the necessary and proper clause, of officers 

other than the President. 

There’s very little else in the Constitution itself to reflect on that 

question except the take care clause, which is frequently invoked 

without necessarily recognizing what I’m about to call to your attention. ‘‘He shall take care that the laws be faithfully executed.’’ Now, I stress the word ‘‘be’’; this is a passive construction; it’s not ‘‘he shall take care to faithfully execute the laws’’; it’s ‘‘he shall 

take care that the laws be faithfully executed.’’ Again, I suppose 

the suggestion is that there’s somebody else that’s doing the faithful execution and his job is to take care, to oversee the proposition—the possibility that they are doing that. 

One other clause is frequently invoked by presidents. I’ve been— from the plane ride down this morning—I’ve been reading a report 

from a research assistant and my only excuse for waiting so long 

was that he e-mailed it to me last night at 1:23. 

[Laughter.] 

Mr. STRAUSS. About the frequency with which signing statements 

invoke the President’s right to give recommendations to Congress 

about legislation. The President’s position is this means that’s his 

exclusive right and no member of the executive branch can talk to 

the Congress without first telling him and being subject to his control about what he is to say, and this is a position that has been 

present for quite some time. 

What the Constitution says is he shall from time to time give to 

the Congress information on the state of the Union and recommend 

to their consideration such measures as he shall judge necessary 

and expedient. Entirely useful authority and responsibility for the 

President but notice what it doesn’t say; it doesn’t say anything 

about exclusivity on his part. And notice, as well, that if you contrast it with the other system that existed in the world at the time 

and that indeed does exist in parliamentary democracies, it’s remarkably weak. 

One of the striking things about American Government is that 

the executive officer cannot command congressional processes. He 

can’t force Congress to consider anything; all he can do is recommend, and one could understand this formula in that term. That 

is, he can make recommendations in the hope that some Congressman or Senator—usually there’s someone from his party who will 

do this—will be willing to introduce the measure and hope that his 

friends in the Congress will produce it in something like the shape 

in which he recommended it. But that seems to be all the constitutional language is talking about. 

Now, I came to my sensitivity of these—I’ll call them ambiguities 

in the constitutional language—from my position as general counsel of the Nuclear Regulatory Commission, one of those independent regulatory commissions, some 30 years ago. And at one 

point we had—there was pending before the Congress a proposal 

to domesticate the claim of executive privilege and require it to go 

through the President and be made by the President personally. 

1362

The Office of Management and Budget and the Office of Legal 

Counsel asked us what our views were on this proposed legislation, 

and one of the striking things we thought about the legislation was 

that it didn’t include any reference to the independent regulatory 

commissions. They weren’t to have the possibility of getting the 

President to invoke executive privilege on their behalf. 

Well, for someone whose agency had atomic weapons plants and 

sundry other highly sensitive materials in its possession, this 

seemed highly unusual, so we sent over a recommendation. Whatever else was done, they should be sure to include the independent 

regulatory commissions, at least those like us, who have such sensitive information, in the possibilities of the President claiming the 

executive privilege, and we got back a little letter from OLC saying, ‘‘so sad, too bad, you can’t have it, you’re not in the executive 

branch.’’ [Laughter.] 

Mr. STRAUSS. This letter generated a whole range of scholarship 

on my part, after my return to Columbia; it’s very similar in its 

outlook to Cynthia’s. But what I want to point out for the moment 

is the difficulty that this gives to the claim of strong unitary president, because Congress regularly, in the independent regulatory 

commissions, as it did for the first Department of the Treasury, 

says to executive officials, please report to us on the following subjects. Please submit your budget requests directly to us and a variety of other commands of that sort and those commands are regularly obeyed. 

If one reads the signing statements, as I was reading them on 

the plane down this morning, one finds an unending pattern of 

presidential assertion. Congress cannot make anyone talk to it except through me again, again, and again; one of the dominating 

themes of the signing statements. Congress cannot get any Federal 

officer to recommend legislation except through me. Congress cannot demand of any Federal officer a report except through me. Very 

hard to square with the existence of the Federal Trade Commission 

and the Nuclear Regulatory Commission, so forth and so on, and 

for that matter, at the very least, an extremely aggressive reading 

of the constitutional words that I’ve given you. 

So it will be clear to you that I’m not a particularly strong proponent of this unitary executive, but I noticed in the audience this 

morning someone who at an early stage was responsible for the development of what’s now Executive Order 12866, which on the 

whole, I rather like and approve of. But I think he probably has— he may have a view of the President’s position more favorable to 

it than I do. It’s Jim Tozzi, who was an early actor at OMB and 

I wonder Jim, if there’s anything you’d care to add by way of comment to what you’ve heard this morning. 

JIM TOZZI. I would just add one point. Executive review and all 

we did on the order—these were the five presidents when I worked 

there. This is the issue that your very distinguished panel discussed, and it struck me that it was discussed in OMB very heavily. In fact, I dabbled with all the advice I got; as Professor Strauss 

said, I was the clear person in charge of this thing and we had tons 

of advice and we put them on our website if you want to see them. 

But the bottom line is, I think this debate... I’m not going to argue 

1363

with four people that were quite more solid on the details, including war powers. But I’ll make two points. 

First point from a management standpoint, it’s pretty difficult for 

me to see why the President should be putting independence aside 

from the agency’s classic case. I used to get these calls all the time 

from the EPA. For example, EPA, OSHA, and Agriculture on pesticides were in regular conflict over who had jurisdiction on the 

Federal side? Now, who is going to resolve those issues? Were we 

going to court? Were we going to go to Congress? And so we had 

to resolve it. And so one idea that I have seen on the business side, 

I think the President, as a matter of public policy, as the CEO, he 

should have these powers alone. 

Second point is, having worked an entire career in Government, 

except for one time as for an attorney, I worked for the Defense. 

I’ve always had an attorney as a boss, a little of what, you know, 

comes down, and one point I would say, with all the points you 

made, the big issue of presidential control was really—already 

under Reagan, it was under the Ford and life review under Nixon, 

where these debates took place. And you know, without exception 

the five times I worked there, I never said, and OMB never said, 

that we had control over what an agency’s rulemaking did. 

My position is, or was, that we simply advised the head of the 

agency of our views. I don’t think you’ve ever seen—I see a couple 

of my colleagues over there, Mr. Eisner and—(inaudible). You’re 

laughing at that but we never assumed this issue that you’re debating today because we granted it. We said it’s the agency’s prerogatives; we just gave them our opinion. 

Mr. STRAUSS. I’ve got to give it to Jim; absolutely right as to coordination. You remind me of one additional thing I had meant to 

say. There was some talk about Congress and the public becoming 

inured to a certain view. For me, the truly important issue is 

whether Washington bureaucrats and in particular, Cabinet heads, 

heads of agencies, become inured to a certain view. 

If—and to the extent that—a President impresses on his officers 

that their responsibility is to say, ‘‘yes sir boss, you’re in charge’’, 

then we’ve lost something quite precious as distinct from the frame 

of mind. This is my responsibility, given to me by Congress, Mr. 

President, I hear you respectfully; but at the end of the day I’m the 

one who has to decide. And my concern—and I want to be very 

clear—this is a concern that came to me in the Clinton administration, not the current Bush Administration—my concern is that 

mind frame has been eroded; 107 directives from President Clinton 

to his Secretaries telling them what he expected them to do was 

a signal of that erosion, and the result is a significant loss of public 

responsibility. 

Ms. FARINA. Yes, but——

Mr. STRAUSS. Oh, go ahead. I’m sorry. 

Ms. FARINA. Can I follow from that? To follow up what Peter 

said, you know, as I said at the end of my presentation, the notion 

of each of the named constitutional actors having an institutionally 

appropriate oversight relationship with agencies seems to be clearly—in the case of the President—includes the essential function of 

management and coordination that would indeed cover interagency-jurisdictional conflicts and I don’t think, at this point, anyVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 01363 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230
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one denies that cost-benefit analysis and risk assessment, that 

those are absolutely essential elements of responsible rulemaking. 

Now, that said, of course, the devil is in the details and, you 

know, we had a lot of ongoing work that we needed to do in how 

those processes ought to be done responsibly. And I think there is 

a question about whether—I think there continues to be a question—maybe we can’t resolve it—about whether they can be done 

in a place where the President is also, simultaneously, asserting a 

kind of power to do substantive policy control with cost-benefits 

and risk-assessment control. 

I think there is a real problem when you try to do those two 

things in the same location. Whether you can do them together in 

a way that won’t continue to be controversial is unclear. But I take 

your point completely. That seems to me to be within the kind of 

institutionally appropriate oversight that the President ought to be 

engaging in. Did you want to—— Mr. ROSENBURG. Let me interject here a bit of a broader question 

and follow on from what Peter said and what Cynthia has said. 

Cynthia, you know, evoked good early childhood memories with 

your Yurtle the Turtle optimistic view——

[Laughter.] 

Mr. ROSENBURG. —of the separation of powers and I wonder—my 

experience over the last 30 years, and particularly over the last 

ten, has been to look at it from the point of view of Congress. 

What’s Congress been doing and whether there is beginning to be 

a change in a constitutional paradigm. A great deal, perhaps encouraged by the coalescence of Congress and whether the coalescence of Congress over a long period of time is something that we 

should be concerned about. Some scholars have pointed to the New 

Deal, arguing that that was a change in the constitutional paradigm for the regulatory state and for Congress’ active role, as well 

as the Presidential role in administration. 

I wonder, after not simply 6 years of coalescence, but perhaps 

more, and looking at signing statements. T.J and I have been 

studying signing statements for some time now. But you have to 

look behind the signing statements to what they’re doing, and as 

the speakers today have mentioned, they are directions given directly to the administrative bureaucracy as to how they carry out 

their duties. I can give many examples of where these directions, 

some of which have come in signing statements which have declared the unconstitutionality or constitutional objections to particular provisions of law, have been carried out by the administrative bureaucracy. 

The Prescription Drug Program’s passage is an illustration of 

that. At that particular time, the Congress asked the chief actuary 

of CMS ‘‘what are your projections for this drug program?’’ And the 

chief actuary had to refuse to give his projections to the Congress, 

which were $150 billion more over a 10-year period than was understood by Congress at the time it was taking this vote, and the 

chief actuary couldn’t do it because he was directed by his superior, 

who was directed by the White House apparently, not to reveal 

those figures. Not revealing those figures made a difference probably, in the outcome of this. The chief actuary had for cause removal protection authority, yet he was threatened with firing if he 

1365

said something. That was upheld by OLC as part of the President’s 

authority under the unitary executive and expanded ideas of executive privilege to be constitutional, that he has the authority to direct everybody no matter how low in the bureaucracy. I’ve seen examples of independent regulatory agencies adopting OLC opinions 

with respect to recommendations clauses, with respect to executive 

privilege. 

I’ve seen [congressional] subpoenas that have been issued to 

agencies ignored and with impunity, with nothing to respond to. 

I’m wondering is—do we have a paradigm even if there is a change 

in the political structure of one or both houses of Congress? Are we 

going to see a difficulty in a rebalancing? And I put that to Peter 

and to the panelists. Kevin, come on up. 

Mr. STRAUSS. Stand up Kevin. 

Mr. STACK. Okay. Seems like a big and difficult question that 

Mort just posed, but a couple, maybe initial, thoughts. Some have 

described a kind of crystallization of the strategic advantages of the 

unilateral powers of the executive, in part because the President 

can act less constrained by the demands of coordination, and therefore often can have a sort of first mover advantage. That’s the 

prominent work of William Howell, which then forces the other 

branches to respond and form constituencies in response to specific 

proposals, which I think can impede legislative action. 

Part of this, also, is that I think the President has more incentives to gain institutional control over the mechanism of Government in so far as the President is held largely accountable for how 

the Government as a whole functions. There is a strong incentive 

for the President to increase control over the functioning of Government. 

Congress, on the other hand, I think has less institutional incentives to push the boundaries of its authority. Its incentives are 

more ad hoc and substantive and in response to the nature of its 

own composition. So that might play into a kind of logic of progressive expansion of presidential power and relative congressional disinterest in that growth. 

I certainly wouldn’t say complete disinterest; I certainly wouldn’t 

want to say that. So that there’s just two points which might suggest the kind of background dynamic and structural conditions 

which are promoting relative congressional acquiescence in advancing assertions of presidential control. 

Mr. ROSENBERG. Yes? 

Q: I have a question for Kevin and it sort of builds on the beginning of Peter’s presentation and—I’m not—I’m a little skeptical 

that you can put so much stress on the word ‘‘be’’ in the take care 

clause. Maybe I need to see a weather report and find out if it was 

unseasonably cool the day—(inaudible). 

[Laughter.] 

Mr. ROSENBURG. We can put more stress on that than the second 

half of the necessary and proper clause. 

I just wondered, Kevin, what your theory says about a situation 

in which the President is convinced that the agency is doing something wrong, that the President is not satisfied with the way the 

laws are being executed. What is the—assume it’s an unambiguous 

delegation directly to an agency, so we don’t worry about the PresiVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 01365 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230
1366

dent having a statutory role. So what do you say about the situation in which the President observes that there’s been a delegation 

directly to an agency, the agency is not performing its function the 

way the way the President thinks is appropriate. Does the President have the authority to act under the take care clause to ensure 

that the law’s faithfully executed in the way that the President—

obviously that’s a delegation—(audio break)—the President would 

have to make an independent judgment about what proper execution of the law is. 

Mr. STRAUSS. Yes. My thought on that would be that the President has political remedies, and can try to persuade the officials. 

If that fails, the President can sort of publicly disclose his displeasure with the official. If they’re still at an impasse, then the 

President has the remedy of firing. But, in a sense, the delegation 

to the official—which of course is more politically costly to the 

President, but if the delegation runs to the official, Congress has 

forced the President to those political remedies. 

Q: Then why do you say, though, about the situation there where 

the removal is restricted and so you could have a—(inaudible)—

there’s adequate cause, and that controversy I guess can end up in 

the courts. 

Mr. STRAUSS. Right, and we have a couple of examples, one historical and one rather more contemporary, of just this kind of response. The historical one is Andrew Jackson’s effort to get his—

I think it was the Secretary of the Treasury to deal with the 

United States Bank in the way he wanted it to and he had to go 

through three Secretaries of the Treasury before he could find one 

who would do what he wanted. 

The more recent example, of course, is President Nixon’s effort 

to fire Archibald Cox as independent prosecutor who was an official 

who had by law been rendered irremovable except for cause and 

eventually in some litigation he was found to have—it was Nader 

versus Bork—who was found that he hadn’t been properly removed, but nonetheless, history had marched on. 

Mr. ROSENBERG. Any more comments for our panelists? 

Jeff Lubbers. 

JEFFERY LUBBERS. Yes. Thanks, Mort. 

Just picking up on your comment about the FDA official who had 

for-cause removal protection yet still felt that he could not disobey 

an order coming from above—I mean, Kevin’s suggestion that—or 

Kevin’s comments made me think that Congress could try to immunize some of these rulemaking officials, some of these heads of 

agencies, by giving them for-cause protection so that they would 

feel more resistant to presidential directives. But one of the few 

cases I know where this has happened is the Social Security Administration. The administrator does have for-cause removal protection but I don’t think SSA considers itself to be an independent 

agency with respect to the executive order and the other rulemaking functions. 

Mr. ROSENBERG. Indeed. The administrator of the Social Security 

Administration has the authority to send the budget directly to the 

Congress and has acquiesced in sending it to OMB before it’s presented, so that——

1367

Mr. STRAUSS. As constitutionally he must. I mean, the Constitution does give the President the right to require the opinion in 

writing of the heads of any of the executive branches and any matter within their duties. And I take it if he were not to respond to 

a direct presidential request for an opinion in writing, he would 

have committed insubordination at a constitutional level and could 

be removed for cause. That seems to me not the least bit controversial. 

Mr. LUBBERS. But if you then took the next step and said, here’s 

my opinion but I’m not going to follow your directive and issue this 

sort of rule that you want me to issue—— Mr. STRAUSS. Tossed. 

Mr. LUBBERS.—then what? 

Mr. STRAUSS. Tossed. 

Mr. LUBBERS. Is that cause for removal? 

Mr. STRAUSS. The President—no. I mean, at least on Strauss’s 

construction, the duty is the duty of the head of the SSA as advised: I have your advice, Mr. President; I’ve given it respectful attention; this is my conclusion, exercising the responsibilities that 

have been placed in me. That doesn’t sound like a cause for removal to me. 

Mr. LUBBERS. But we’ve never had a case where a person protected by for-cause removal protection has actually fought being removed and gone to court. 

Mr. ROSENBERG. Humphries did. 

Mr. LUBBERS. Well—— [Laughter.] 

Mr. STRAUSS. His widow, anyway. And well, and Weiner. There 

have been some but—— Mr. LUBBERS. They didn’t have—(inaudible). 

Mr. STRAUSS. Can I say one other one thing? This isn’t quite on 

point but Marbury versus Madison, right? You all—those of you 

who are lawyers at least all remember that for its assertion of the 

right of judicial review. But in the course of the opinion, Chief Justice Marshall makes a distinction between those matters that are 

committed to the discretion of executive officers and those under 

which they have a duty to act. And he said, well, the courts can 

never be involved in matters as to which the executive officials 

have discretion. In that context, they are merely the mouthpieces 

of the President and the judicial function has no business. 

I think you immediately notice, if you think about the extent of 

judicial review of exercises of agency discretion in ordinary administrative action, that there’s a middle category that Marshall’s neat 

dichotomy leaves out. Sure, for the Secretary of State, for the Secretary of Defense, for those matters as to which the Supreme Court 

justice once put it, ‘‘there is no law to apply,’’ the courts have no 

business. And those officers do speak as the mouthpieces of the 

President and are subject to his direction, I would say in respect 

of their exercise of that kind of discretion. But when there is law 

to apply, when Congress has created a framework that is to be observed and may be enforced through the courts, even though we 

may also call that discretion, we’re in a different state of affairs. 

Mr. ROSENBERG. Cynthia? One last comment and we’ll—this debate is going to go on all day. (Chuckles.) 

1368

Ms. FARINA. I guess I was just going to respond a little more 

globally to your question about congressional acquiescence and just 

sort of point out that we do tend to, I think, lose a sense of history 

about those large cycles. Certainly after the Nixon presidency, political scientists were bemoaning the fact that the presidency visa ́-vis Congress had taken a hit that it would never recover from, 

and it is hard—it is simply impossible to predict. Even with what 

seemed to be entrenched structural advantages that Kevin points 

to, that are very powerful, it is hard to predict when the next major 

institutional shift might come. 

But what I try to use the turtles-all-the-way-down image with 

my students in separation of powers to point out is not—I don’t 

think of it as an optimistic or a pessimistic view but rather as a 

descriptive matter, that there are a much larger array of moves 

that all three of the main constitutional actors are constantly engaging in on a large and a small level that I think particularly law 

students in law school tend to think about. They tend to think 

about a very static and small number of big moves. And those remain for Congress even in a world where Congress may not be 

making big moves a lot with the President. 

And I think, for example, about appropriations in particular, and 

perhaps the example of rulemaking, the way Congress has stepped 

in and, using appropriations in some very targeted ways, closed 

down or made it more difficult for funding to flow to that project 

as a way of expressing a view in a struggle with the executive. I 

may not think that’s a good—(chuckle)—a good move it’s made, but 

it has very clearly used a power that it can use quite effectively, 

in some very targeted ways, and it’s not obvious to me that that 

couldn’t have been used, for example, in this particular instance. 

And that, compared to the President, is actually a move that Congress can make pretty easily that the President oftentimes has a 

very difficult time countering in the appropriations area. And that’s 

just one of those moves that a lot of times at least law students 

don’t think about at all. 

Mr. ROSENBERG. Keep telling them. 

Ms. FARINA. I do. 

Mr. ROSENBERG. We will be closing our first panel of discussion 

now. We will have 10-minute break. Let me advise those of you 

who are not familiar with this building that there are restroom facilities out to the left and around on this floor. And we will return 

for our panel on judicial review of agency rulemaking in about 10 

minutes. 

Thank you.

1369

MONDAY, SEPTEMBER 11, 2006

Panel 2: 

JUDICIAL REVIEW OF RULEMAKING

Moderator: 

Morton Rosenberg, Congressional Research Service

Panelists: 

Jody Freeman, Harvard Law School

Peter L. Strauss, Columbia Law School

Richard J. Pierce, George Washington Law School

Jeffrey S. Lubbers, Washington College of Law

at American University 

Joseph W. Doherty, Harvard Law School

MORTON ROSENBERG. Welcome back. Without in the least way 

denigrating in any way the other participants in this symposium, 

this is one of the most distinguished panels of administrative law 

experts that you may ever see or hear in any one place. 

JODY FREEMAN. Stop! 

[Laughter.] 

Mr. ROSENBERG. I’ve got more. The level of legal erudition is off 

the scale. 

[Laughter.] 

Mr. ROSENBERG. Each one, in their way, has participated in the 

debate over the last decade or more over the proper role of the 

courts in reviewing agency rules. The ossification literature has, for 

the most part, pinned the blame on the courts for stultifying the 

rulemaking process. Part of the criticism has been based on the anecdotal assumption that some 50 percent of challenges to agency 

rules have been successful in appellate courts, leading to the criticism that the unelected judiciary is substituting its own policy 

judgments for those of the expert agencies, which has in turn 

caused agencies, it is said, to be wary and slow in issuing rules, 

or has led them to use non-rule rules or the adjudicatory process 

to issue substantive directions to the public. 

It is to the substantiality of that anecdotal presumption that Professor Freeman and her colleague, Joe Doherty, will address. She 

kindly took on the task of reviewing the decisions of over 3,000 

courts of appeals cases in every circuit over a 10-year period to determine if that anecdotal presumption is true, and today she presents us with her preliminary findings. 

Jody Freeman is a professor of law at Harvard Law School, 

teaching administrative law and environmental law and natural resources law, and she is the director of the school’s environmental 

law program. Her scholarship focuses on the public/private collaboration governance, regulatory innovation, negotiated approaches to 

regulation and privatization. She is co-author of a leading casebook 

in environmental law, now in its seventh edition, and co-editor of 

two forthcoming books on ‘‘Moving to Markets,’’ and ‘‘Environmental Regulations and Outsourcing in the United States.’’ Prior to 

joining the Harvard Law School faculty, Professor Freeman taught 

for 10 years at UCLA where, in 2004, she received the law school’s 

1370

Rutter Award for excellence in teaching, and in 2001 was voted the 

Professor of the Year. She continues to be a fellow in the Evan 

Frankel Environmental Law and Policy Program at UCLA, which 

she helped found. She serves as vice chair of the ABA Administrative Law Section subcommittees on both Dispute Resolution and 

Environmental Law and Natural Resources, and in 2006 she 

chaired the Executive Committee on Administrative Law for the 

Association of American Law Schools. 

Her colleague, Joe Doherty, is the director of the Empirical Research Group at the UCLA School of Law. He has written on a 

broad range of fields, including campaign finance, bankruptcy, elections, and public opinion. Jody? 

Ms. FREEMAN. I just want to give a plug now—I just joined Jack 

Beermann’s administrative law casebook, and here’s—you know, 

Peter is up here, so you have two competing casebooks—and Cynthia’s here. You’ve got a lot of administrative law casebook authors 

in the room, so beware; we might try to sell you things on the way 

out. 

When Curtis Copeland calls you and says, ‘‘I have a database,’’

try not to take the phone call. 

[Laughter.] 

Ms. FREEMAN. He said, I’ve got over 10,000 cases in the database 

and we’re wondering, do you want to maybe look at them? And my 

terrible mistake was to say, ‘‘don’t give it to anybody else.’’ And 

then I ran around and found Joe Doherty, who is the empirical analyst supreme and who runs the Empirical Research Group at 

UCLA. And this was just before I left to go to Harvard, and so we 

carried the project forward and we maintained our teamwork, and 

we’ve studied this collection of appellate cases from all the circuits 

over a 10-year period in order to figure out what was going on with 

judicial review of rulemaking. 

So we want to give you the highlights, but you should know that 

the data we’ll present today—these data are literally hot off the 

presses. We have just completed—we’re not even through the entire set of cases but we’re through almost all the cases and we reserve the right to correct and amend. So this really is a draft and 

this is a real opportunity for us to get some feedback and questions 

if things don’t make sense to you, if the numbers look funny to you, 

and have a dialogue about what we found. 

The purpose of the study is to investigate what happens to rules 

upon review, to determine the rate at which they are invalidated 

or upheld, or invalidated in part and upheld in part, to figure out 

the reasons for which the rules are invalidated or upheld and to 

see if there are trends in the data over this 10-year period about 

whether—about the nature of the litigants, whether that affects 

the rate of reversal or affirmance; whether there is something 

about the composition of the judicial panels that affects outcomes. 

We’re looking for all of these trends, and we’ve made the most 

progress figuring out rates of reversal and we’ve just started to do 

the step on figuring out the makeup of the panel, whether a Republican or Democratic appointment affects the outcome. So there are 

some things we know the answers to today and some things we 

don’t. 

1371

There is just a brief introduction I want to give you on how we 

came to settle on this particular set of cases so that you understand a little bit about the methodology and then Joe will take us 

through the highlights from the tables and then we’ll open for discussion. 

We started with a database of well over 10,000 cases that we got 

from the Administrative Office of the Courts with the help of Curtis and with the help of Mort, and it covers, as I say, this 10-year 

period from 1995 to 2004—and from that database of over 10,000 

cases, we wound up with a smaller subset of 3,075, which was 

culled using a set of rules that the AOC used. So they generated 

the 3,075 cases for us because they decided to exclude a BIA 

cases—Board of Immigration appeals—and consolidated appeals, 

and then tried to further reduce them to cases that were decided 

on the merits and in which there was a published opinion. So we 

have this smaller subset. 

From those 3,075 cases we then had to determine—and again, all 

of the circuits, 10-year period. We are not aware of—we think this 

database is unique. We then had to determine how many of these 

cases involved challenges to rules. So there was a threshold decision that we had to cull out all of the non-regulation cases, and 

then after that we wound up with a subset of—305? 

JOE DOHERTY. So far. 

Ms. FREEMAN. So far; we’re not done. So we’re at a point of determining the cases that are rules are at a rate of about 14 percent 

right now—14 percent of all the cases. And then we take those 

cases and we’ve trained a research team—this took a lot of time. 

It took a coding instrument to code each of these rulemaking cases 

to determine, again, outcomes, reasons for the outcomes, makeup 

of judicial panels, type of litigant, and every other piece of information we could think of to put into the coding instrument. No doubt 

we have missed a few. I’m sure you’ll suggest some. We could go 

back and modify it and do it again. 

I won’t say more about the methodology, but just so you know, 

it is a census, not a sampling that we have here. We’ve gone 

through all the cases. Joe is going to talk about the results, as I 

say, but I just want to give you a couple of highlights. 

The take-home message right at this moment is that over half 

of the rules are upheld completely—upheld outright—and we come 

up with a figure of 76 percent that are upheld in whole or in part. 

We’re having a little internal debate about whether it’s 72 or 76 

percent at the moment, and that may continue, but it’s around that 

figure. 

The other kind of headline over this is, in part relying on somebody else’s data—Steve Crowley of the University of Michigan is 

publishing a book coming out next year, Princeton University 

Press, in which he reports data in which he counts the number of 

rules on average per year generated by all agencies, and it turns 

out that to find out that simple information is incredibly labor-intensive, and as Cynthia noted this morning, the figures vary. 

What Steve Crowley did is he went to two main sources: the 

RISC data, the Regulatory Information Service Center, which is in 

the GSA, and took their count, which was based on the Federal 

Register, and he also went to the GAO and took their count, which 

1372

is based on the Congressional Review Act’s requirement that GAO 

count. He had two separate counts of how many rules are generated. You can imagine how complicated this is because, you 

know, do you count the rules that are really substantive or all the 

housekeeping rules, and he winnowed out—in both of these sources 

he winnowed down to the—tried to get an average, or at least a 

range, or how many rules per year that are substantive, that are 

meaty, coming out of all of the Federal agencies. And he comes up 

with a range of about 1,000 to 1,500, both coming from the GSA 

and coming from the GAO. 

So we took Crowley’s figure and we used it as a baseline, and 

using it, the rate of challenge of rules is about 3.4 percent—about 

42 a year—and the rate of invalidation, in whole or in part, is 

about 21 percent. 

Mr. DOHERTY. No. 

Ms. FREEMAN. Wait—no? 

Mr. DOHERTY. Overall, 0.7 percent. 

Ms. FREEMAN. Overall—oh, that was a very bad mistake. The 

rate of—less than 1 percent of the rules are invalidated annually—

less than 1 percent of the rules, using the baseline that Crowley 

provided, which is a very conservative baseline. We’re taking the 

lower number of annual rules—substantive, meaty rules—less than 

1 percent invalidated annually, which gives you a picture not of, 

you know—well, it’s hard to get immediately to this conclusion, but 

if 0.7 percent of promulgated rules are invalidated every year, it 

doesn’t quite feed the image of a sclerotic, ossified process in which 

agencies can’t get anything done. It doesn’t speak to how long it 

takes and the difficulties of promulgating rules, but it doesn’t give 

the impression that rules aren’t successfully being promulgated in 

the end. 

And the last thing I want to mention, just by way of context, is 

of course ours is just one of a series—a number of studies that have 

been done over the years, now building into a body of empirical 

work in administrative law. And among those studies are very different kinds of inquiries, none that is quite like ours but some that 

are similar and that have relevant results, and once we conclude 

with the tables and the figures, I’ll talk a little bit about those 

other studies, but to give you a little—to foreshadow a little bit, 

there is a very well known study by Peter Schuck and Don Elliott 

which was a study across all circuits, and it was a sampling technique they used over about a 20-year period to look at the rate of 

affirmance and reversal, and they came up with a rate of affirmance increasing over time from the late ’60s to the late ’80s where 

agencies were getting affirmed ranging from 55 percent and over 

20 years rising to about 76 percent. 

The difference between their study and ours is they looked at 

both adjudications and rulemakings and it turns out the rate of affirmance for adjudication is higher than for rulemaking, so you 

can’t really do a comparison between our study and theirs without 

taking out the adjudications from theirs because that pumps up the 

rate of affirmance. 

And they also concluded that the D.C. circuit is less likely to affirm than other circuits, and they also concluded that the rate of 

1373

affirmance is lower for health and environmental agencies in general. 

So at the end of this we’ll try to say something about how our 

work relates to that earlier study and to a few others—those done 

by Ricky Revesz about judicial ideology and the impact—different 

makeup that panels have on the outcomes of rulemakings; a study 

by Kerr (sp) on the same thing, and then a very controversial study 

by Jonathan Adler that focused specifically on EPA rulemakings 

during the Clinton administration and that concluded that—I’m 

paraphrasing—EPA is wildly out of control and pays no attention 

to the law. I think that study is over—I think the results of the 

study are misleading and I think there is a better, more accurate 

study to tell about the rates of reversal and how EPA, among other 

agencies, is performing. 

So I give you now Joe Doherty and the tables. 

Mr. DOHERTY. Thank you, Jody. I’m very happy to be representing the country west of the Cumberland Gap today. 

Jody has already gone through the case selection. I’ll tell you a 

little bit about the sampling and measurement. This is a sample 

of so far because we’ve had the sample from the 3,075. We’ve already collected data on about 2,300 cases. We’ve done a little bit 

of inter-rater reliability testing. We’ve had a lot of sessions with 

the RAs after they’ve coded the cases. So we’re reasonably high on 

the reliability of the coding, but of course we’ll always find errors. 

Ms. FREEMAN. But it will be a complete census. 

Mr. DOHERTY. It will—in the end, we will have all 3,075 done. 

Of the 2,300 we’ve done so far, 14 percent are rulemaking, and that 

works out to the 305 that we have in our dataset today. 

The data collection included, obviously, the threshold, the procedural history: which statutes were at issue. And there is—I think 

I counted; we had about 200 different statutes in these 305 cases 

in one form or another. The judges and the basis for challenge, the 

outcome, and the remedy, these are things we coded for. There are 

about 60 or 70 different items in the database that we’re coding for, 

and they’re exclusive of each other. We’re coding for things like the 

number of Fortune 500 companies that are plaintiffs, for example. 

So here is a distribution of cases that we have. The EPA and the 

FCC dominate everything. Out of the 31 total agencies that were 

involved in these 305 cases, two-thirds of them are just those two 

agencies. The rest, as you can see, are distributed very—I don’t 

want to say meekly, that’s not the right term, but they’re very 

poorly represented if you were to think that they would be randomly distributed. So what we did for the rest of the analysis is 

throw all of the other ones into a single category because the EPA 

and the FCC are the ones that really stand out. 

Now, you have all the tables and so I’m going to walk you 

through very briefly and point out some of the things that Jody 

talked about, some of the things that I think can stand retelling. 

The bottom line here is the rate at which the rules are upheld outright—56 percent overall. It varies some by agency. The other 

agencies are upheld at a rate of 67 percent, the EPA at 55 percent, 

and the FCC at 45 percent. You’ll also notice that the FCC is the 

one with the most complicated outcomes. They have the ones with 

the most sort of combination, the invalidated in part, upheld in 

1374

part, and remanded. We think that this is due to far more complicated rules that come through FCC. Jody is working with somebody on that. I’m a data guy, so you bring me the data, I’ll give 

you an answer, but—— Ms. FREEMAN. By the way, I’m trolling for FCC experts because 

the FCC remains—I’m an administrative law professor who still 

cannot figure out half the time what the FCC is doing, so if there’s 

experts on FCC rulemaking via order, come talk to me. 

Mr. DOHERTY. And then the second big takeaway here is the invalidated rate. Invalidated outright is quite low. 

Of the different bases on which the rules were challenged, it 

seems the catchall one is arbitrary and capricious. Sixty-four percent of the rules were challenged based on that one item. The FCC, 

half of those were on constitutional grounds, which, as we’ll see in 

the outcome, that’s where it dominated there as well. And then the 

EPA, the one that it is most challenged on, is under the Administrative Procedure Act. But overall, they’re all quite high in the arbitrary and capricious category. 

The next table, three, this is obviously because these are the— following the basis for the challenge, the outcome parallels, so this 

table parallels the last one. It’s not clear here but if you’ve got a 

sort of a little—if you’ve got a math head, you can see that about 

40 percent of the constitutional challenges are upheld, about 30 

percent of the arbitrary and capricious and about 30 percent of the 

Administrative Procedure Act challenges are upheld. That’s the 

bottom line. Down here where 14 percent of the challenges are 

upheld on constitutional grounds is about 40 percent of all of the 

challenges on those grounds. 

The Chevron Step 1 and Step 2 analysis. Basically what this 

says is that if you reach a Chevron Step 2 analysis, the rule is 

going to be upheld, and the Chevron Step 1 analysis is where they 

get struck down. So if you reach Step 2, the agency will survive. 

Is that right, Jody? [Note: ‘‘Chevron Step 1’’ refers to the court determining whether Congress has directly spoken on the question at 

issue. If Congress has not done so, ‘‘Chevron Step 2’’ refers to the 

court determining whether the agency’s interpretation of the statutory language is permissible.] 

Ms. FREEMAN. Yes, and that compares with everything we say in 

class, so that’s good. 

[Laughter.] 

Mr. DOHERTY. That’s right. We wouldn’t want the data to prove 

anyone wrong, because then the data must be wrong. 

Table 5—I think this is probably the last page. I’ll get to the 

graph in a second. This is kind of a complicated story. This is 

what—the kind of table you put together when you’re saying, I 

need one more table for the presentation. These are just the cases 

that were invalidated or remanded or something other than upheld 

outright. And by the outcome, which is on the left-hand side, and 

then going to the right, which percent of these were overturned 

based upon that particular reason. So 22 percent of those that were 

invalidated were invalidated because they were unconstitutional; 

30 percent were outside the allowed exceptions of the Administrative Procedure Act. This is just the distribution of why they were 

invalidated in the way that they were. 

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There is not a high number of cases in any of these, and when 

we finish the data collection, I don’t expect we’re going to find a 

lot more, so if you have any advice on how we should collapse these 

to make the statistics more meaningful, or if you think that there 

is just no point in doing that, I’d be willing to hear that too. 

And then finally—I’ve got to go back. There it is. 

Ms. FREEMAN. I was very excited about this when I saw it, and 

then——

Mr. DOHERTY. Statistics. 

These relationships are not statistically significant. It looks like 

they’re going on one direction and the other and like there is trend, 

but there really isn’t. I tried it two or three different ways and I 

can’t find a way to make this statistically different from the null 

hypothesis. So we cannot reject the null hypothesis if there is no 

trend going on here. 

Ms. FREEMAN. So I spent all this time saying, what the hell happened in 1997, or whatever it was, and trying to figure out presidential—it’s every thing you could imagine until we found out it 

wasn’t significant. 

Mr. DOHERTY. Yeah, so pay no attention to the spikes behind the 

curtain. 

[Laughter.] 

Mr. DOHERTY. But that in itself is interesting because we found 

in an earlier analysis a difference in the rules—the percentage of 

rules that were challenged over time. Around 1995, 1996, there 

were more challenges than there were later on, but that appeared 

to not have much of a bearing on the overall rate of being upheld. 

Ms. FREEMAN. So at this point we are very reluctant to make 

much of this. We don’t want to come in with an analysis of what 

it means and how it affects ongoing debates about whether agencies perform well or not. I don’t think you can draw those kinds of 

inferences safely and carefully from the data, but what you can do 

is start to think about how this coheres with other studies to see 

if you’ve got studies that seem to reinforce each other and that tell 

a story about at least a range of rule survival and rule invalidation, 

and then from there try to piece together a story about what reasons seem to be the most important reasons why rules fail, and 

perhaps then go step by step to sort out where agencies may be 

weaker or stronger, how different agencies compare to each other, 

and then again, the information on the judicial panels will be very 

interesting. 

So we’re quite shy of saying anything too dramatic, which is always a little disappointing, but I do want to connect this to a few 

other studies and then make one point about what continues to be 

a relative dearth of empirical work on the administrative state. 

Notwithstanding that we are seeing a buildup of work and studies, 

we do lack a coherent and comprehensive empirical strategy, and 

I give tremendous credit to Curtis Copeland and Mort Rosenberg 

and their colleagues at CRS for sponsoring, at the behest of the Administrative Law Subcommittee of the Judiciary Committee of the 

House, this effort to do more empirical work, and a great deal of 

work in a very short time had begun as a result of their sponsorship and the phone calls that said ‘‘I have a database.’’

1376

But I think we should be very clear that this is not the way you 

study administrative process if you want to do it responsibly for the 

long term. This is no slight against them—I think this is a very 

laudable effort—but we need a body, an agency, an institution, 

something that is capable of supporting, sponsoring, monitoring 

and then analyzing a lot of data from both the rulemaking side, the 

adjudication side, the informal invisible policy, decision making 

side, and we don’t have it. 

So what you’re hearing from us is interesting, but even when you 

piece it together with the other work going on, we do not know 

much. As I said at one conference, when we stand up in front of 

an administrative law class, we actually don’t know what we’re 

talking about. We actually don’t know much about the organism, 

the administrative state, that we’re claiming to know about. And 

it’s alarming when you consider that the output of administrative 

decisions dwarfs the Federal courts and dwarfs the output of Congress in terms of legislation. And we know the least about it. So 

I just gave you my punch line. 

Let me just say a few words about these other studies. The study 

I referred to earlier, Peter Schuck and Don Elliot, studying all circuits—agency decisions across all circuits for about a 20-year period, including adjudications and rulemakings, comes up, as I said 

before, with a rate of affirmance of agency decisions going from 

about 55 percent up to 76 percent over a 20-year period. And as 

I said, the D.C. Circuit is less likely to affirm than other circuits, 

and health and safety—health, environment, and safety rules and 

decisions—the rate of affirmance for those a little bit lower. 

Our study, generally speaking, is consistent with this except if 

you separate out rules alone, the rate of upholding rules—not rules 

and adjudications together—their rate of affirmance comes out 

somewhere around 43 percent. And their study stops in 1988. So 

we’re actually showing a higher rate of validation for rules, a higher rate of affirmance than they are. But the tricky bit with this is 

it’s never clear how particular researchers define invalidation, even 

when they say in whole or in part, what counts for an outright win 

may be slightly different than somebody else and so you really 

have to get into the methodology and figure out, well, what counted 

for them when they said affirmed. When we say ‘‘invalidated’’ or 

when we say ‘‘upheld,’’ what counts for us? We’re trying to be very 

conservative and if there is any doubt where some parts of the 

rules are upheld and some parts are not, we immediately put it in 

the mixed category and we only declare an outright win when it’s 

an outright, total, complete validation and there is nothing left; 

there’s nothing invalidated or remanded. 

The Ricky Revesz study and the Kerr study, these are studies of 

judicial ideologies about which it’s hard to draw conclusions about 

the rate of rule survival because they’re not focused on the rate of 

rule survival; they’re focused on whether it makes a difference that 

Republican- or Democrat-appointed judges sit on the panel, and 

there there is a consistent trend. We probably know the most about 

this—between the Revesz study and the Kerr study and Cass 

Sunstein’s recent work, we probably feel pretty confident now to 

say ideology affects outcome, and that work has great attraction for 

administrative law scholars, of course, because it’s really sexy to 

1377

get up and give a talk about how judicial ideology affects outcomes. 

But it doesn’t—we can’t draw that much from it when we’re trying 

to figure out what’s going on with rule survival and the reasons 

why rules fail or don’t fail. 

But you can pull out of the Ricky Revesz study, which was the 

study only of the D.C. Circuit—so, unlike ours, not all the circuits, 

only the D.C. Circuit—and from 1970 to 1996, and only the health 

and safety agencies—so, this, again, makes it hard to compare. 

Sometimes it’s about apples and oranges in these studies. We pull 

out of his study a rate of reversal of rules that ranges from 27 percent all the way to 50 percent. So that really gives you quite a 

broad range, and we come down on the much lower end of the rate 

of reversal compared to that study. 

And then let me just finally go back to the Jonathan Adler study 

that I mentioned, which was focused exclusively on the EPA. Adler’s study looked at all the EPA regulations but reviewed only 

those in the D.C. Circuit—so, again, different from ours; we looked 

at all the circuits—and he covered an 8-year period, the Clinton administration essentially, from 1993 to 2000. He looked at 69 cases. 

He found that EPA rules were struck down—again, not defining, 

not clear to me yet what ‘‘struck down’’ means or what ‘‘mixed results’’ mean in his study—but he concludes that there is an invalidation rate for rules of about 54 percent, and that EPA prevailed, 

he says—again, not sure what ‘‘prevailed’’ means; is an outright 

win, the whole rule upheld or is it mixed?—EPA prevailed in only 

33 percent of the cases. 

Now, if that 33 percent figure is meant to be when EPA wins in 

whole or in part on its rules, quite different from ours, right, because we have a statistic that says you win outright or in whole 

or in part with your rule somewhere around 76 percent, and our 

outright win is 54 percent. 

And he claimed—Adler claimed, based on his data concerning 

these 69 cases, that ‘‘EPA’’—this is a quote—‘‘has little regard for 

the limits or obligations of its statutory authority and little regard 

for the need to explain the basis for its decisions,’’ which I think 

is an overstatement based on the data. Adler’s—I’m making a lot 

of this really because I think we have to be very careful in our empirical work, and I want to use this as an example of how I took 

a lesson from reading this study. Adler makes his conclusion that 

the EPA during the Clinton years is out of control based on a comparison with the Schuck and Elliott data I mentioned to you earlier. He looked at their 20-year study and said, well, the rate of affirmance there, all agencies, they were getting upheld at a rate up 

to between 55 and 76 percent in their study, so this rate of affirmance for EPA is dramatically low. In other words, EPA is getting 

struck down all the time compared to what we know from the 

Schuck and Elliott data. But the Schuck and Elliott data included 

adjudications, not just rules, and as the Schuck and Elliot study 

itself made clear, adjudications are affirmed more often at a higher 

rate than rules. 

So if you include—I mean, if you include adjudications in their 

data, you pump up the rate at which agency decisions survive, and 

it looks then, in comparison, like EPA’s rate of survival for rules 

is much, much lower and there is something wrong with that agenVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 01377 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230
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cy. But that’s an apple-and-orange comparison, and so for that reason and other reasons, including that, even granting the figure to 

Adler that even if he were comparing apples and apples, there are 

other explanations for being struck down during the Clinton years, 

including ideological shift in the bench over this period of time, a 

difference between who is in on the bench of the Federal circuit 

courts during the Schuck and Elliott period of late ’60s to late ’80s 

compared to who is on the bench when Adler looks at his 8-year 

period. And we actually took a look at this and it turns out, of 

course there was a shift to Republican-appointed judges, a general 

trend in that direction. So if you believe the other studies on judicial ideology, that’s a possible explanation of why EPA gets struck 

down more often, even granting him his number. 

So all I’m saying here—Jonathan Adler is a colleague in environmental law and a friend, and I admire him, but all of us need to 

take great care with our empirical studies to make sure that we 

are comparing appropriate databases and drawing fair conclusions 

from them. 

This leaves me with really just one point, which is when all is 

said and done, we’re still standing here with one figure: 54 percent 

of an outright win on the regs, on the rules—challenged rules, 

which leaves you saying, wow, that’s nearly half of some kind of 

loss, and in the end you could say, this is very bad. Mort opened 

up with, people get very alarmed—50 percent, 50 percent. And I 

guess my reaction is not the Adler reaction and it’s not the reaction 

of alarm at a 50 percent loss rate because I think—there is a theoretical reason why you could say this shouldn’t be alarming, and 

it’s located in what many of you know as the Priest-Klein theory 

which says that one should anticipate a 50 percent rate of winning 

if you’re actually litigating these cases. The easy cases settle and 

the hard cases that get litigated should fall out about evenly between the litigants, so you should expect around a 50 percent win 

rate and you shouldn’t be surprised by that. 

There has been a lot of criticism in academic literature of this 

theory because it originated in—because it originated in civil litigation, it wasn’t meant to be applied, necessarily to administrative 

appeals, where there are repeat players and multiple parties, and 

where it’s real cheap to take the last step to go to court after you’ve 

developed a case through the agency. So, the costs and the incentives aren’t quite the same as they are in civil litigation. So you 

could say, given that we’re in this repeat player area, we shouldn’t 

expect the same 50 percent fallout rate that you see from PriestKlein, so you can dispute that theory. But it still may have some 

purpose, we still should think carefully about whether, given the 

complexity of the rules, about political salience of many of these 

rules, the costs associated, the multiple parties, and the repeat 

players, whether we should really be surprised that the most challenging, difficult rules turn out to win or lose around a 50 percent 

rate. So I think we need more conversation to figure out what those 

numbers mean before we decide that agencies are not paying attention to the law and not giving any reasons for their decisions, 

which I think is an alarmist and over-reaction. 

And finally, just leaving you with the larger figure, we have this 

54 percent number for outright win, but we do have this much bigVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 01378 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230
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ger number for winning in whole or part. So, you’re heading up 

into the 70 percent rate. And interestingly, that is for winning— for mostly winning. And you have this very, very low invalidation 

rate. So, I think it—the most stunning result to me was putting together the Steve Crowley numbers for average annual substantive 

rules. With our figure in the end for how many rules get invalidated. And winding up with less than 1 percent. And that to me 

communicates something, and it also is reinforced by some data 

Cary Coglianese came up with in his article in the Duke Law Journal, where he was mostly talking about regulatory negotiation, 

about which some of you know a lot. He was talking about reg-neg, 

but on the way, in his article, he happened to try to correct some 

myths about empirical work. And one of the pieces of data he came 

up with was that only about a half a percent of the time do agencies really get stomped by courts. And more around that too, in our 

study of rules. So that, I think, is a very usefully little kernel of 

information. 

We’re going to keep parsing the data, you may catch a lot of 

things for us, which would be very helpful, so let’s just open it up 

to discussion. 

Mr. ROSENBERG. Thank you very much, Jody and Joe. 

We’re going to proceed as follows. Our next three panelists have 

their choice of discussing this data or going on to other emerging 

and important issues regarding judicial review. We thank Jody and 

Joe for what is obviously a beginning of a conversation, beginning 

of work, and this is landmark stuff. And that when they ultimately 

come to their final data, I think it’s going to be a major piece of 

research that is going to be discussed for a long, long time. 

Our next speaker is Jeffrey Lubbers. I’m going to cut down on 

the biographies because we need time. Let me just say about Jeff 

that he’s a fellow in law and government at American University’s 

Washington College of Law. He teaches courses in administrative 

law, environmental law, Federal legal institutions, and ADR. In his 

past, he has been the research director of the Administrative Conference of the United States, which is the organization that some 

hope will be revived so that they will be the kind of organization 

that does empirical work on administrative law, process, and procedure issues. Personally, Jeff and his output of, you know, on administrative law has been most helpful to TJ and me, as we try to 

inform the Congress about what administrative law practice and 

procedure is all about. And I bugged him, over the last couple of 

years, to get that book out. Because you can hold it in one hand 

and it now has an index and it is an easy to piece to find the most 

salient, the most—you know, and some of the more esoteric answers to questions that we get from the Congress. Jeff? 

JEFFREY LUBBERS. Thanks very much, Mort. I’m very pleased to 

be on this distinguished panel. Any event that has even a subliminal text of recreating the Administrative Conference is something I want to be part of. 

[Laughter.] 

Mr. LUBBERS. And also, thank you for mentioning the book. I figured this was as close as I could come to a book tour for this 

book—— [Laughter.] 

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Mr. LUBBERS. —which is the fourth edition of a Guide to Federal 

Agency Rulemaking, which was originally started at the Administrative Conference in 1983. I had a small role in the first edition. 

But now it’s being published for the ABA and there’s some order 

forms in the back. 

Now one of the things I noticed in updating this—the third edition of this book, which was written in 1998, was that judicial review of rulemaking had become a lot more complicated. And this 

section of the book required a lot of revision. Partly due to the sort 

of burgeoning amount of case law on the Chevron-Meade line of 

cases, which Peter will discuss later. Partly also due to the sort of 

inconsistency with which the courts have applied the arbitrary and 

capricious test, which Dick Pierce I think was going to talk about 

a little bit later. But also due to the increasing importance of 

rightness and finality as hurdles to challengers to agency rulemaking action, or inaction. 

So what I want to talk about today are some issues concerning 

the availability of judicial review. Are the courthouse doors open 

wide enough, and are they more open to particular types of challengers than to others? Has the presumption of reviewability, 

which was articulated by the Supreme Court in the Overton Park 

and Abbott Laboratories cases, begun to wane? And at the end I’ll 

have a few questions and queries for our empiricists over here. 

So, let me begin by addressing standing to sue, which is usually 

what we think about when we think about the threshold barriers 

to challenging agency action. Participants in agency rulemaking 

proceedings are usually members of a class that either stands to 

benefit or lose by the final agency rule. So standing is not normally 

an obstacle to review. However, the Government does like to raise 

standing concerns in litigation, and there have been some challengers that have been denied standing, because they failed to 

show that they would be adversely affected or injured by the rule. 

For example, in 1992, in the second Lujan case, the Supreme Court 

denied standing to some animal watchers who wanted to challenge 

a rule by the Interior Department that exempted overseas, federally-funded projects from the endangered species review process. 

And in so doing, this case made apparent a potential problem with 

the way the standing doctrine was developing. A plurality of that 

court, in that case, led by Justice Scalia wrote that, ‘‘When the 

plaintiff is not himself the object of a Government action, or inaction he challenges, standing is not precluded, but it is ordinarily 

substantially more difficult to establish standing.’’

Now Professor Farina has characterized this passage as creating, 

‘‘Potential causation hurdles that asymmetrically burden beneficiary standing.’’ But I think, in this—I don’t have any empirical 

data for this—but as the cases have played out in the lower courts, 

this seems not to have been such a severe problem because courts 

have allowed challengers to argue that, for standing purposes, the 

proper comparison for determining causation of injury by the agency is not between what the agency did and the status quo before 

the agency acted. Rather the proper comparison is between what 

the agency did and what the plaintiff’s alleged the agency should 

have done under the statute. Moreover, the courts have recognized 

many different types of cognizable injury, including aesthetic injuVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 01380 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230
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ries, recreational injuries, and the Supreme Court itself subsequently held agency failures to provide legally required information, or the agency’s failure to follow procedural or analytical requirements, did present a justiciable claim without having—without the challenger having to show particularized injuries. 

So I think the standing problems have not been as severe as 

might have been predicted after Lujan, but as they become less 

problematic, I think rightness and finality issues have become 

more problematic for challengers. A few decades ago, neither 

rightness nor finality posed much of a problem for the challengers. 

Abbott Laboratories ruled in 1967 that in most instances rules 

could be challenged in a pre-enforcement context, as long as the 

challenger could show the promulgation of the rule had an immediate impact on him or her. And finality was not normally a problem either when it came to final regulations. But in a series of 

cases in the 1990’s, the Supreme Court began to pump up the finality and rightness doctrines. The cases beginning with the first 

Lujan case in 1990, followed by Bennett v. Spear in 1997, Ohio Forestry v. Sierra Club in 1998, and Norton v. Southern Utah Wilderness Alliance in 2004, did not involve traditional notice and comment rulemaking, but they’ve led to many lower court decisions 

dismissing petitions for review of regulatory action or inaction. 

So let me just describe these four cases really briefly. In the first 

Lujan case in 1990, the court declined to hear a challenge to a Department of Interior’s removal of some protections for a large swath 

of western lands. The challenge wasn’t really directed toward explicit regulations, but instead to some changing policies for reviewing classifications of public lands. The court found a lack of ripeness, and noted a failure to allege the concrete effects normally required for APA review. So that was 1990. 

In 1998, in the Ohio Forestry case, the Supreme Court seemed 

to be elaborating on the rather permissive ripeness test in Abbott 

Laboratories. But it added some things and the test made it difficult to challenge the sort of—(audio break, tape change). Now this 

case concerned the ripeness for review, for immediate review, of a 

forest plan, adopted by the Forest Service, which authorized the 

cutting of timber in Ohio National Forest. And the plan indicated 

that 80 percent of the permitted logging would permit clear-cutting 

of the timber. So the Sierra Club challenged this plan, and they 

won in the Sixth Circuit, which ruled that the plan was arbitrary 

and capricious for not allowing—looking at alternatives. But the 

Supreme Court unanimously reversed, and Justice Breyer wrote 

the opinion, and found that delaying review would not cause either 

a legal or practical hardship to the Sierra Club because it could 

still challenge the individual logging projects. Now, that would obviously be more expensive, but the court said the Sierra Club did 

not really have to modify its behavior immediately like the drug 

company did in Abbott Laboratories, and increased litigating costs 

were not enough of a hardship. So since then, it’s been very difficult to challenge these sorts of agency planning documents that 

are required under many of these natural resources statutes. And 

I think that has made the planning process much less meaningful. 

So that’s rightness. 

1382

Now as to finality. A year earlier, in 1997, Justice Scalia wrote 

for the court in the Bennett v. Spear case. And this is kind of a reverse endangered species act case, because ranchers were challenging some actions of the Interior—of the Fish and Wildlife Service, that would have protected fish by requiring reservoir levels to 

be high enough to protect these fish. But the ruling also meant 

that the ranchers couldn’t use the water for irrigation. So first 

there was a standing aspect of the case, and Justice Scalia, writing 

for the court said, ‘‘I think the ranchers have standing. They were 

injured.’’ It was interesting because it kind of—before that we tended to think of endangered species act as protecting endangered species, but here the ranchers were saying, ‘‘There were aspects of the 

act that protected us too.’’ So that was the standing part of that 

case. But the court also created a new doctrine of finality that has 

become sort of a leading test for finality of agency action for purposes of judicial review. So the court kind of came up with a test 

that said, first the action must be the consummation of the agency’s decision-making process, it must not be of a merely tentative 

or interlocutory nature, okay? And second, the action must be one 

by which rights or obligations have been determined, or from which 

legal consequences will flow. Well, that’s a lot like the ripeness 

test, or the second prong of the ripeness test. And now, this case 

has become cited quite often. 

And the last case is this Norton v. Southern Utah Wilderness Alliance in 2004. And this had to do with agency inaction. In this 

case, the environmental group tried to get declaratory or injunctive 

relief from the Bureau of Land Management’s failure to act to protect Utah public lands from environmental damages caused by offroad vehicles. And they pointed to some language in the statute 

which they said required action by the BLM. The petitioners said, 

‘‘We can sue under the APA Provision 7061 that allows for us to 

bring suits to compel agency action unlawfully withheld or unreasonably delayed.’’ The Tenth District said, ‘‘No. No right to sue.’’ The Tenth Circuit reversed this, and the Supreme Court reversed 

the Tenth Circuit unanimously. And in doing so, the court said, 

‘‘You can only bring an action under this provision challenging 

agency inaction where the plaintiff asserts that the agency failed 

to take a discrete agency action that it is required to take.’’ So the 

discreteness prong of this test ruled out challenges to broad, programmatic attacks, similar to the first Lujan case. And the second 

prong, the court said that even if it’s discrete agency inaction, it 

has to be the sort of inaction that’s demanded by law. So the court 

said this was not clearly demanded by law, therefore can’t sue. 

So, what difference do these cases really make? And I knew that 

Jody was going to bring some statistics, so I asked some of my law 

students to do a quick empirical experiment. So I asked them to 

collect all the Federal court cases since they were decided of—that 

have cited Ohio Forestry concerning ripeness, all the cases citing 

Bennett v. Spear on finality grounds, and all the cases citing Southern Utah since 2004. And the findings showed a rather surprisingly, at least to me, high rate of court dismissals of challenges to 

Government action or inaction. For example, since 1997, there were 

104 district court cases citing Bennett v. Spear’s finality test and 

over half, 53 out of 104 found a lack of finality. The Court of ApVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 01382 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230
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peals level, the ratio was even more negative, 36 out of 58 cases 

found no finality, that’s 62 percent. With respect to the ripeness 

cases, Ohio Forestry case showed a similar result, except this time 

the district courts were more negative—eight ripe, 17 unripe. Court 

of Appeals it was 50–50—nine ripe, nine unripe. The impact of 

Southern Utah was even more dramatic. In the district courts, of 

the cases citing this Supreme Court case, only two out of 16 were 

heard. In the Courts of Appeals, two out of ten. So, only four out 

of 26 cases were heard. And not surprisingly, most of these brought 

by environmental groups challenging programmatic decisions made 

by Federal land management agencies. 

Now I haven’t really analyzed these cases individually, and I 

don’t want to make too much of them. But it certainly seems to me 

that the Government has a very high success rate when it now 

raises ripeness or finality defenses to lawsuits challenging agency 

action or inaction. Now again, not all of these involve classic regulations. Many involve challenges to agencies’ plans, interpretations, 

policies, classifications, and letters. But keep in mind that most of 

these agency actions do fall within the APA’s definition of rulemaking. 

So now, I have a few questions for Jody. Does your sample include cases involving any agency issuance that fits within the 

broad APA definition of rule, such as the sort of guidance documents that were involved in the cases that I just mentioned? That’s 

the first question. The second is, if your sample only includes those 

cases where the rulemaking challenge was decided on the merits, 

what about those petitions dismissed on standing ripeness or finality grounds? Three, can you discern any trend, has the rate of dismissal on threshold grounds increased? And my feeling is that it 

might be because agencies are now moving to these non-rule rulemaking types of policy makings because of the rigors of rulemaking, the ossification problem. And four, what about this asymmetry that Professor Farina warned about, can you tell whether 

litigants who benefit from regulation and wish to challenge the inadequacy of the agency’s response to health, safety, or environmental problems have been faring worse than litigants who are the 

objects of the challenged regulations? 

So I look forward to seeing more of your results and I hope that 

a revised ACUS is around to analyze the results as well. Thanks. 

Mr. ROSENBERG. Thank you, Jeff. 

Ms. FREEMAN. Can I just answer that? (Inaudible.) 

Mr. ROSENBERG. Let me get to the other two. You’ll be the first. 

Our next panelist to speak will be Richard Pierce, Junior. Richard 

is a professor of law at George Washington University Law School. 

Before joining that faculty, he taught at Columbia University, the 

University of Virginia, Southern Methodist University, Tulane University, and the University of Kansas. He was also dean of the University of Pittsburgh Law School. He practiced with Sutherland, 

Asbill & Brennan, in Washington, D.C. And he is the author or coauthor of ‘‘Administrative Law and Process,’’ ‘‘Regulated Industries,’’ the fourth edition of ‘‘Administrative Law Treatise,’’ and ‘‘Economic Regulation.’’ He has written numerous articles on government regulation, regulatory economics, and the characteristics 

of markets of electricity and natural gas. Richard? 

1384

RICHARD PIERCE. Thank you. I want to focus primarily today on 

the arbitrary and capricious test, as it is presently implemented 

and interpreted by the courts. As Jody’s study showed, roughly 50 

percent, maybe a little under 50 percent of agency rules are invalidated—that are challenged are invalidated in whole or in part. And 

the most frequent single basis for invalidation is the judicial conclusion that the rule is arbitrary and capricious. Now, arbitrary 

and capricious can mean most anything. It is a wonderfully malleable expression, and it was until recent decades believed to refer 

to an extremely easy-to-pass test. It was almost impossible to prevail in a challenge to a Government action based on an allegation 

that is arbitrary and capricious. 

That changed in 1983 when the Supreme Court issued the famous State Farm opinion in which it announced or endorsed what 

is often called the ‘‘hard look’’ doctrine, also sometimes referred to 

as the duty to engage in adequate decision-making, adequate reasoning. And the best short-hand summary I can provide of that test 

is that it calls upon the court to decide whether the agency has provided adequate reasons in support of whatever it is that the agency 

has done. And as Jody’s numbers show, and lots of other studies 

show, that is the most frequent single basis on which agency rules 

are invalidated. 

Let me pause there for just a second and suggest that you not 

over-interpret the relationship that Jody pointed out between Steve 

Crowley and her numbers; that of the total number of agency rules 

issued—it’s a very large number, roughly a thousand—versus the 

fact that only 3 percent are challenged. What that means is that 

in 97 percent of cases, regulatees were not at all dissatisfied with 

the rule. Okay, if any regulatee is dissatisfied with the rule, it is 

the subject of a petition for review. 

Okay, I was in practice for years; I filed scores of them. They are 

cheap, as Jody pointed out. If you don’t like it, you’re going to file 

a petition for review. For some of them, there may be dissatisfied 

beneficiaries. As Jeff just pointed out, beneficiaries have to pass a 

whole bunch of a threshold rules to get into court. Regulatees have 

no such hurdles. So the number to think about is the population 

of cases that are the subject of challenge. And agencies can identify 

that population very easily ex ante. 

Well, the way that the duty to engage in reasoned decision-making, or the ‘‘hard look’’ doctrine, works is an agency is reversed by 

a court if a court detects any flaw or gap in its reasoning in support of the action that it takes. It is absolute child’s play to find 

flaws and gaps in support of anyone’s reasoning, in support of taking any action. I challenge any of you in this room to come up with 

any action that you want to take, and give me a statement or reasons that I cannot pick apart. It is a piece of cake. 

So what we have got is a doctrine that is extraordinarily openended and malleable. So what effect does it have? Well, the first 

effect it has is it induces all of the commentors on any controversial 

proposed rule to submit massive comments, including lots and lots 

of studies. And we get rulemakings that run somewhere between 

100,000 and 1 million pages with scores of inconsistent studies. 

Then the agency’s job, in order to comply with the duty to engage 

in reasoned decision-making, is to provide what the APA refers to 

1385

as a concise general statement of basis and purpose in support of 

the rule that it has issued. And any agency that provides a concise 

general statement of basis and purpose will be reversed summarily 

through application of the ‘‘hard look’’ doctrine. 

The statement of basis and purpose in support of any controversial rule—any rule that is disliked by any regulatee must run in 

the hundreds and sometimes thousands of pages to have any 

chance of being upheld. So this leads us to one of the major effects 

of this judicially created doctrine of ‘‘hard look’’ or duty to engage 

in adequate reasoning. That is the ossification effect. What it does 

is tell every agency if you want to issue a rule that you expect to 

be at all controversial, then it will take you many, many years and 

millions of dollars of your scarce resources to do so. That discourages agencies from engaging in rulemaking. That has a bunch of 

effects. 

One effect is that when Congress passes a statute, as it does 

every few years or so, in which it orders an agency like EPA to 

issue, say, 25 or 30 rules in some area within a 36-month period 

of time, that is utterly worthless. The agency has no chance whatsoever being able to comply with that. If it put all of its resources 

into just that process, it still could not issue anything like the number of rules that Congress tells it to issue within that period of 

time. On average EPA complies with those statutory requirements 

between 13 and 15 percent of the time. It can’t do anything else 

because of the way that the court interprets the arbitrary and capricious standard and applies it. 

The other effect is one that Jody referred to earlier when she alluded to Ricky Revesz’s 1997 study, and there have been other 

similar studies, the 2004 study that Cass Sunstein put in Virginia 

Law Review, and the one that will be—that is forthcoming that 

Cass has in the next University of Chicago Law Review. 

What those studies show is that this doctrine, in the hands of 

judges who have very strong political and ideological views—and 

that is all judges. You don’t get to be a judge unless you are a 

loyal, a long-time member of one political party or the other. So in 

the hands of any judge with strongly held political or ideological 

views becomes a means through which the judge can, on the basis 

on whim and caprice, decide that the agency has not complied with 

the duty and hence that the agency action is arbitrary and capricious. 

What Ricky’s study—Ricky Revesz, the dean at NYU, showed 

was that looking at D.C. Circuit panels, Republicans judges were 

four times as likely as Democratic judges to find fatal flaws or gaps 

in the reasoning of EPA when EPA rules are challenged by 

regulatees. Well, this shouldn’t come as any great shock to any of 

us. We certainly have to know that judges are all people with 

strongly held political and ideological views, and all you need to do 

to explain this phenomenon, which I find quite discouraging, is to 

add to that the nature of this test, this judicial doctrine. You must 

reverse the agency if you think that the agency did not provide reasons adequate to support what they did. 

Well, I don’t know about you, but any time somebody does something I dislike, I find flaws in their reasoning in support of it. So 

even though this test is not supposed to provide a means through 

1386

which a judge can simply say ‘‘you’re a Democrat; I’m a Republican; 

you’re out of here,’’ that is the net effect that it has, and the converse, because any judge is going to be tempted, and is thoroughly 

tempted just to say I disagree with the conclusion, so there has got 

to be flaws and gaps in the reasoning in support of the conclusion. 

So I think this is just an abominable judicial doctrine. It is entirely judge made. It has horrible effects, and I would urge you all 

to read a piece that I reread again this morning by some fellow 

named Paul Verkuil in the 1981 volume of Tulane Law Review, entitled, ‘‘Waiting for Vermont Yankee II,’’ in which he argues that 

the Supreme Court needs to eliminate that doctrine. The case in 

support of that action has simply grown over the years. Thank you. 

[Applause.] 

Mr. STRAUSS. You have introduced me already. 

Mr. ROSENBERG. I know. 

Mr. STRAUSS. (Off mike.) 

Mr. ROSENBERG. I just wanted to say welcome and that Mr. 

Pierce is not ambiguous. [Laughter.] 

Mr. STRAUSS. But as usual guilty of understatement, it wasn’t 

1983 and State Farm; it was 1971 and Citizens to Preserve Overton 

Park v. Volpe——

[Laughter.] 

Mr. STRAUSS. —which is how Paul could publish the piece that 

he published in 1981, before State Farm had been decided. 

This was wonderfully intriguing paper. I had already put on my 

list the questions that Jeff has already asked you. But I do want 

to add a couple of more. One is really a question about your coders. 

I am struck at the ratio between constitutional challenges as to 

whether a rule is within an agency’s authority and statutory challenges. It’s about three to one. It strikes me as highly 

counterintuitive and improbable, and I think you need to go back 

and check that ratio very carefully. 

Ms. FREEMAN. I think the—(off mike). 

Mr. STRAUSS. No, the EPA is two to one. The other agencies are 

four to one, four-and-a-half to one, so it runs across the coding, and 

I’m dubious about it. And I’m dubious about the non-providence of 

Chevron, although it’s interesting; it’s a related question. I’m dubious about the non-prominence of Chevron given the excitement of 

that case to courts. It has the highest rate of citation of any recent 

decision of the United States Supreme Court and administrative 

law matters, and to academics like myself. 

The other question, which I hope is in your coding, and which is 

implicit in a number of the comments that have been made before, 

is whether you have any way of giving the figures against the 

stakes. In the 1,000 to 1,500 rules a year—that is the Crowley 

count—I imagine are a number of rules locating buoys for the 

Coast Guard, or doing similar kinds of things. I would suppose that 

when we are dealing with—maybe it can be as simple as major 

rules as declared by OMB. When one is dealing with major rules, 

the attention courts will give and the incentives that parties have 

to bring a judicial review are both higher, and I would be interested, at least if it were possible, to see if there were any differences in the outcomes of those settings. 

1387

And I want to add that when one is dealing with a major review—with a major rule, that is a rule having roughly having a 

million dollars a year impact on the economy, I don’t, myself, have 

any problem with the rulemaking having to take a long time and 

being subject to rather an exacting review. And this is the agencies 

doing Congress’ work, and we ought to be relatively sure that it is 

doing it well, although people who heard me earlier this morning 

will not be surprised to hear either that I do have some problem 

with the notion that in that kind of context, the President who is 

not subject to the obligations of reasoning, record respect, and so 

forth that the agencies are subject to—can simply call up ahead of 

the agency and dictate to how he wants the rules to come out. 

Okay, so it was said that I would talk about Chevron and Meade. 

And you guys are hungry for lunch, and we ought to give Jody a 

chance to respond to what you have heard from us. And you have 

already heard that Chevron and Meade are the two large players 

in this study, so I am not going to say very much. I will say this: 

That the volume and use of interpretive rules, statements of general policy and the like, what I have called in other contexts publications rules, is in roughly the same ratio to things that appear in 

the Federal Register, as things that appear in the Federal Register 

are to congressional statutes. So the issues of judicial review of 

those instruments, very often precluded by ripeness and finality 

considerations, but possibly improperly so, are high stakes matters. 

Suppose they are reviewed. Chevron deference. Well, the Supreme Court has told us rather emphatically a couple of times in 

Meade and a subsequent case called Brand X—I know it is Brand 

X because that is easy to remember. The front end is something 

like ‘‘National Telecommunications.’’ Eight to one, with Justice 

Scalia in one of his typically vociferous dissents disagreeing. But 

know in this instance, if you have a publication rule, something 

that wasn’t adopted by these public processes that are supposed to 

produce something like that expertise and not simply political judgment, the best the agency can hope for is a kind of respectful attention and not the obedience that Chevron commands. 

But then last year, in a case called Oregon v. Gonzales, the gap 

narrowed considerably. That was a decision five to three rather 

than eight to one. And I think we could pretty confidently count 

the missing Justice Alito as joining the three. So it becomes five 

to four. That Chevron deference ought to have been paid to an 

opinion issued by Attorney General Ashcroft without a moment’s 

public consultation with those possibly interested in the matter as 

to his interpretation of drug laws. I should confess, by the way, 

that my name was one of the names on an amicus brief in the case 

arguing for the result that five justices of the Supreme Court 

agreed with. But nonetheless, five to four, let’s say. 

And now let me just draw the connection to the first panel this 

morning. If the President issues signing statements in which he 

announces his interpretation of law, and if his agency officials are 

under the impression, correctly or incorrectly, that once the President has told them what he thinks the statute means, that is what 

the statute means. And if those presidential statements are entitled to Chevron deference, even though they have not been issued 

1388

as a result of public consultative procedures, then we are I think 

in a very sorry mess. 

Mr. ROSENBERG. Thank you, Peter. 

[Applause.] 

Mr. ROSENBERG. We will next give Jody a chance to answer some 

of the questions, and I just have one further question that they 

raised with Professor Pierce. Why do we have to wait for the Supreme Court to change the reasoning standard? Have you have 

some suggestions for Congress to do it, which I presume, the constitution—we can change the standard of review, and what reasons 

can there possibly be for not changing it? Jody? 

Ms. FREEMAN. Boy, am I not going to answer that question. 

[Laughter.] 

Ms. FREEMAN. Dick, enjoy. 

[Laughter.] 

Ms. FREEMAN. Just very quickly, I really appreciate the early 

feedback because we also think that there a few things we need to 

look very carefully at. And of course we are going to do a cross 

check and recode everything so everything gets coded twice. But, 

quickly, to respond to Jeff’s question about whether the definition 

of rule in the APA, including things not just notice and comment 

rules, we were looking only at notice and comment rules to try to 

just get a handle on those first—can certainly go broaden to interpretable——

Mr. STRAUSS. But 30—you give a figure of cases that were rejected because they didn’t use APA procedures, that they pretended 

to be interpretive or—— [Off mike.] 

Ms. FREEMAN. No. 

[Off mike] —non-merits determination. 

Mr. STRAUSS. No, no, no. 

Ms. FREEMAN. No, no. They made a mistake, but it wasn’t because of a—Ah, I know what you’re saying—they didn’t follow procedure because they weren’t in the exception, the interpretive rule 

exception. 

Mr. STRAUSS. That is correct. So it looks as if—— Ms. FREEMAN. But we coded the interpretive rules, but they are 

not in the end. Okay, we are not going to do this in public—okay, 

we’re checking. 

[Applause.] 

Ms. FREEMAN. Also, we only—we didn’t go to the threshold cases. 

We only did certain cases. The AOC first called out only the merits 

cases for us in the first instance. So we would have to go back to 

the original 10,000 database to get the non-merits cases that you’re 

interested—the threshold cases that you’re interested in. So but—

but again, it can be done. You just need an army of—I just want 

to make the point that, again, this is not cheap, right. The Harvard 

Law School dean who happens to be an administrative law scholar, 

Elena Kagan, who happened to be in Clinton’s administration, ‘‘thought great project,’’ and I think I’ll kick some money at this 

great CRC project. But not every law school dean is going to do 

that. And it’s very precarious to do this in this piecemeal way; that 

is just another plug for an ACUS. But we can certainly fix these 

things, and we could look at the threshold cases, which, as Jeff 

1389

points out, is a really interesting—poses a really interesting set of 

questions about trends. 

So we can’t tell anything about what he wants to know, which 

is the trend in what is happening with ripeness and finality and 

are the beneficiaries getting the door closed on them compared to 

the regulatees. The other thing about Peter’s point about using 

Steve Crowley’s number of how many rules per year and shrinking 

it even further to make sure you have got the major rules. There 

is sort of a handy way to do that. You can go with his estimation 

that there are several dozen rules a year that fall in the major category under the executive order. And so that would obviously pump 

up the rate of challenge. And we can just monkey with that very 

easily, and we will do all of that to be fair. 

Mr. STRAUSS. Well, I think you need to look at the reversal rates 

in relationship to the stakes. 

Ms. FREEMAN. Yes, absolutely. We were just trying to get a 

rough cut. But going from his 4,500 figure down to, you know, 

1,200, which is what we did, we were trying to give a sense of 

being actually quite conservative but you can be still more conservative about the high-stakes cases, absolutely. 

And another couple issues on this point about the ratio of challenges in this data, how many get challenged under constitutional—for constitutional reasons, how many for statutory reasons. 

I too was surprised to see that, so we are going to look carefully 

at that—and the non-prominence of Chevron—also striking to us. 

So, again, I just want to be very cautious because literally these 

tables were run on Friday. So——

[Laughter.] 

Ms. FREEMAN. —we have pretty good confidence in the basic 

numbers. They may shift a few percent this way or that. I don’t 

think we are going to be wildly off, so don’t misunderstand when 

I say we’re going to check everything. We think we are safely in 

a range, and I just want to be clear on what the range is. 

When we said 66 percent of the challenge rules come out with 

an outright upholding of that rule, even if that moves a little bit 

one way or the other, we feel pretty confident we’re going to be 

close to that figure. It doesn’t mean that the inverse is true; it 

doesn’t mean that 44 percent got invalidated. I want to be really 

careful. This is not a study, a draft study that says half win and 

half lose. Do not make that mistake. We come up with a figure of 

76-or-so percent upheld in whole or in part. That is only a 20— what did we come up with? 

Mr. Doherty: Twenty-one percent 

Ms. FREEMAN. Again, you can fudge it 21 to 25. You can move 

it around, but in the neighborhood of between 20 and 25 percent 

that are invalidated outright in whole or in part. 

So it is not that half of the rules get struck down. I just don’t 

want you to leave the room and think half of the rules get struck 

down. And we will have another iteration of the data obviously before it’s published. We will probably have two or three more 

iterations, but you have a sneak peak at where it is going. 

Mr. ROSENBERG. Thank you. 

Mr. PIERCE. You want me to respond to that? 

[Laughter.] 

1390

[Off mike.] 

Mr. PIERCE. All right, here is my response. 

UNKNOWN SPEAKER. He wants a bill. He wants a bill. 

In italics. 

Mr. PIERCE. Here my response is I am very reluctant to press the 

on button on a sausage machine because I’m not sure what in the 

world will come out the other end of the sausage machine. 

Mr. STRAUSS. My suggestion is that Congress legislate that arbitrary and capricious be italicized. 

[Laughter.] 

[Off mike.] —on FCC rulemaking suggest—— UNKNOWN SPEAKER. Thank God. [Laughter.] 

Q: Microsoft’s—[off mike]—a little bit. But just a couple of things 

to think about when you’re trying to figure out why the reversal 

rate and rehab rate might be higher—[off mike]. And I have compared it across agencies. But I know from personal experience, the 

FCC rulemakings tend—and especially—(inaudible)—last decade or 

so involve a lot of different issues that are run together in one rulemaking. 

Ms. FREEMAN. Yes. 

Q: That conceivably can be handled separately, and if they were 

handled separately, you might end up with orders of opinions or orders of—that are less internally inconsistent than courts recently 

have been finding things. I mean, they just throw a lot of issues 

in one—(inaudible). 

And another thing, they take a very long time to resolve these. 

You might want to look at that versus other—on the one hand, because of the complexity, as Peter said, that is not inherently a bad 

thing; like, fear, that can be a good thing. But in an area where 

a lot of these rules of course have to do with issues in which the 

technology is changing very quickly, which is not the case with a 

lot of other agencies, by the time they eventually finished the rule 

and get before a court, and if you look at some of these cases, you’ll 

see that the courts are looking at what has happened in the marketplace due to technological changes since the agencies went 

through this process. And that may be another reason why you get 

a higher reversal rate. 

If you look at the—one of the biggest rules’ capacity four or 5 

years had to do with the unbundling of telephone networks. That 

was before the D.C. circuit on three occasions, under USTA and 

with such telephones such as—in the opening, when you look at 

those decisions and the FCC was reversed or remanded three different times, a lot of it had to do with how intelligence perceived 

the marketplace having changed due to technological changes between the time FCC issues a rule and gives that report to the 

court. 

Finally, just another point that I think is significant when you 

look at the commission versus say, APA, when you take that agency, the FCC as a multimember agency of course. When you have 

a multimember agency—and this has increasingly been so with the 

FCC in the last decade, I think the politics seem to get more—I’m 

sorry—there tends to be more political decisions that leads to more 

divergence, more compromises that openly seem to be on principle, 

but in an ethical sense, but in the sense of just inconsistent deciVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 01390 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230
1391

sions will be made. And I think that the multimember commissions 

versus the single-headed agency is something that contributes to 

the reversal as well. Those are some leads. 

Ms. FREEMAN. That is great. Thank you. 

Mr. ROSENBERG. Any other questions from the audience? Before 

I——

Mr. STRAUSS. Can I just ask Randy a question whether you don’t 

think in the particular case of the FCC the reversal rate might also 

be a product of judicial awareness. How many hundreds of millions 

of dollars are being allocated amongst hands on the basis of essentially ephemeral considerations? That is to say this is a context in 

which the fear of money’s influence and other kinds of inappropriate influence is unusually high for Federal administrative action. 

Q: It’s possible. I mean, you don’t see that explicitly in the decisions. 

Mr. STRAUSS. No, no, we don’t. 

Q: But it could be as well. It could be. 

Mr. ROSENBERG. This has been an extraordinary morning, and 

this panel itself has fulfilled its expectations. As I said, I believe 

that this is not a definitive, culminating exercise that we’re doing 

today; it’s defining, it’s setting out the parameters for future research. Before I close this session, let me advise you and the panelists this morning and this afternoon about eating. We have a wonderful cafeteria, but it is a cafeteria. We also have the Montpelier 

Room, which has wait service, a buffet lunch, a wonderful view of 

Capitol Hill, and pleasant surroundings to continue this discussion 

if you want. You can push tables together I imagine and go at each 

other while you’re eating. 

[Laughter.] 

Mr. ROSENBERG. And we will return and I expect even greater 

things from this afternoon’s panel, and I hope everybody stays and 

questions us this afternoon.

1392

MONDAY, SEPTEMBER 11, 2006

Introduction: 

Morton Rosenberg, Congressional Research Service

Panel 3: 

CONGRESSIONAL REVIEW OF RULEMAKING

Moderator: 

T.J. Halstead, Congressional Research Service

Panelists: 

Paul R. Verkuil, Cornell Law School

Jack M. Beermann, Boston University Law School

Charles W. Johnson, House Parliamentarian Emeritus

T.J. HALSTEAD. Good afternoon. Our next panel continues our 

theme for the day, switching our focus to congressional review of 

agency rulemaking. This panel is particularly timely as it roughly 

coincides with the 10-year anniversary of the Congressional Review 

Act, which for the first time established a dynamic allowing Congress to utilize an expedited review procedure to review and disapprove of virtually all Federal rules. However, 10 years on, it 

seems evident that the promise of improved congressional review 

of rules by virtue of the CRA has not been realized as the review 

dynamic set up by the CRA has only been utilized once during that 

timeframe. 

Our panelists will look to the underlying reasons for the unique 

application of the CRA to date as well as various other issues that 

relate to congressional review of rules generally. My colleague and 

good friend, Mort Rosenberg is going to lead off with an introduction to frame the issue of the Congressional Review Act specifically. 

And just a quick word about Mort; we’ve seen him bandying about 

today. I don’t know if you’ve had a formal introduction yet, but 

Mort’s been with CRS since 1972 and for much of that time has 

served as our senior specialist in American public law. When I first 

came to CRS, I was focusing primarily on issues of criminal law 

and procedure and essentially by virtue of Mort’s great enthusiasm 

I was pulled into issues of congressional oversight, separation of 

powers, and administrative law, with Mort acting as a siren of 

sorts to pull me into those issues. And it’s been my great privilege 

and honor to have worked with him over the years and I’ve learned 

an immense amount from him and will look forward to hearing his 

comments now. 

MORTON ROSENBERG. Thank you, T.J. Those of you who were 

here this morning saw my almost futile attempts to put the focus 

on Congress’ responsibility for having some control over the rulemaking process. Now I have the direct opportunity and I’m going 

to take it. 

My review of a decade of experience under the CRA indicates 

that we know enough now to conclude that it has not worked well 

to achieve its original objectives; that is, to set in place an effective 

mechanism to keep Congress informed about the rulemaking activities of Federal agencies and to allow for expeditious congressional 

1393

review and possible nullification of particular rules. This was to be 

accomplished by requiring that all rules—under the broadest definition of the term so that not only rules subject to APA’s notice and 

comment requirements, but guidances, policy statements, personnel 

handbooks, and the like—would also have to be reported to Congress and be subject to legislative disapproval. 

An unreported rule—the first sentence of the act says—cannot be 

enforced. Expedited consideration procedures were provided for the 

Senate, but, however, not for the House. A disapproved rule, if not 

vetoed by the President, deprives the agency of authority to promulgate rules in the same area unless Congress authorized it by 

law to do so. Certain actions taken under the act were not to be 

subject to judicial review. 

The House and Senate sponsors of the legislation stated the fundamental concerns they were addressing by the act, and I quote— and it’s an interesting quote: ‘‘As the number and complexity of 

Federal statutory programs has increased over the last 50 years, 

Congress has come to depend more and more upon the executive 

branch agencies to fill out the details of the programs it enacts. As 

complex as some statutory schemes passed by Congress are, the 

implementing regulations are often more complex by several orders 

of magnitude. As more and more of Congress’ legislative functions 

have been delegated to Federal or regulatory agencies, many have 

complained that Congress has effectively abdicated its constitutional role as the national legislature in allowing Federal agencies 

so much latitude in implementing and interpreting congressional 

enactments.’’ ‘‘In many cases, this criticism is well founded. Our constitutional 

scheme creates a delicate balance between the appropriate roles of 

the Congress in enacting laws and the executive branch in implementing those laws. This legislation will help to redress the balance, reclaiming for Congress some of its policymaking authority 

without at the same time requiring Congress to become a super 

regulatory agency.’’

The numbers accumulated over the past 10 years are telling. Almost 43,000 rules were reported to Congress over that period, including 632 major rules, and only one, the Labor Department’s 

ergonomic standard, was disapproved in March 2001. Thirty-seven 

disapproval resolutions directed at 28 rules had been introduced in 

that period and only three, including the ergonomics rule, passed 

the Senate. 

Many analysts believe the negation of the ergonomics rule was 

the singular event not likely to soon be repeated. Furthermore, it 

appears that not nearly all the rules defined by the statute as covered are reported for review. That number may be double those 

submitted for review. Federal appellate courts in that period have 

negated all or parts of perhaps 60 rules, a number that is significant in some respects, but is comparatively small in relation the 

number of rules issued in that period. It may be an indication that 

the courts have not seen enough rules or are being too lenient or 

that the agencies have indeed been faithfully reflecting the intent 

of those laws. 

It was anticipated that the affected utilization of the new reporting and review mechanism would draw the attention of rulemaking 

1394

agencies and that its presence will become important factor in the 

rule development process. Congress was very well aware at the 

time of enactment of the effectiveness of President Reagan’s executive orders centralizing review of agency rulemaking in the Office 

of Management and Budget’s Office of Information and Regulatory 

Affairs, OIRA. Even in the face of aggressive challenges of congressional Committees, the Clinton administration with a somewhat 

modified executive order was in an aggressive posture of intervention into and direction of rulemaking proceedings continued a program of central control of the Administration. The expectation was 

that Congress through the CRA would enhance its influence in 

agency decision-making. 

The ineffectiveness of the CRA mechanism, however, soon became readily apparent to most observers. The lack of a screening 

mechanism to identify rules that warranted review and an expedited consideration process in the House that would complement 

the Senate’s procedure and numerous interpretive uncertainties of 

key statutory provisions may have deterred its use. The Justice Department, for instance, has successfully taken the position before 

two district courts, that the seemingly broad preclusion of judicial 

review in the CRA prevents a court from denying the effectiveness 

of an unreported rule; that is, to stop the agency from enforcing a 

rule that’s never been reported. Subsequently, a third district court 

rejected those rulings and adopted a contrary position, holding that 

such a reading of the judicial review provision would simply nullify 

the statute’s purpose by allowing agencies to decide whether or not 

to report. It is still an unresolved issue, an important unresolved 

issue. 

By 2001, one commentator opined that if the perception of a rulemaking agency is that the possibility of congressional review is remote—and I quote now, ‘‘it will discount the likelihood of congressional intervention because of the uncertainty about where Congress might stand on that issue when it was promulgated years 

down the road,’’ an attitude that is reinforced so long as the agency 

believes the President will support its rules. Compounding such a 

perception that Congress will not likely intervene in rulemaking, 

particularly after 2001, has been the emergence of what has been 

called by one scholar who was with us this morning as the ‘‘new 

presidentialism’’ that has become a profound influence in administrative and structural constitutional law. It is a combination of constitutional and pragmatic argumentation that holds that most of 

the government’s regulatory enterprise represents the exercise of 

executive power, which under Article II can legitimately take place 

only under the control and direction of the President, and the further claim that the President is uniquely situated to bring to the 

expansive sprawl of programs the necessary qualities of coordination, technocratic efficiency, managerial rationality and democratic 

legitimacy because he, alone, is elected by the entire nation. 

It is argued that one of the consequences of this presidentiallycentered theory of governance is that it necessarily diminishes the 

role of the other important actors in our collaborative constitutional 

enterprise. Were it to maintain that the Congress is constitutionally and structurally unfit for running democratic responsiveness, public regard of this, managerial efficiency and technocratic 

1395

rationality, this scholar suggested his response is why bother talking with Congress about what’s the best way to improve the practice of government. 

In a widely cited and influential 2001 article, the current dean 

of the Harvard Law School reflects the foregoing notions and suggests that when Congress delegates administrative and lawmaking 

power specifically to department and agency heads, it is at the 

same time making a delegation of those authorities to the President unless the legislative delegation has specifically stated otherwise. From this flows, she asserts, the President’s constitutional 

prerogative to supervise, direct and control the discretionary actions of all agency officials. The author states that—and I quote 

here: ‘‘A Republican Congress proved feckless in rebuffing Clinton’s 

novel use of directive power. Just as an earlier Democratic Congress, no less rhetorically inclined, had proved incapable of thwarting Reagan’s use of a newly strengthened regulatory review process.’’

She explains—again I quote, ‘‘The reasons for this failure are 

rooted in the nature of Congress and the lawmaking process. The 

partisan and constituency interest of individual Members of Congress usually prevent them from acting collectively to preserve congressional power, or what is the same thing, to deny authority of 

other branches of government.’’ She goes on to effectively deride 

the ability of Congress to restrain a president intent on controlling 

the administration of the laws. And a final quote from that article: 

‘‘Presidential control of the administration in no way precludes 

Congress from conducting independent oversight activity. With or 

without significant—a significant presidential role, Congress can 

hold the same hearings, engage in the same harassment and 

threaten the same sanctions in order to influence agency’s administrative action.’’ Congress, of course, always faces disincentives and 

constraints in its oversight capacity as this article earlier noted. 

Because Congress rarely is held accountable for agency decisions, 

its interest in overseeing much administrative action is uncertain. 

And, of course, Congress’’ most potent tools of oversight require collective action and presidential agreement. Its capacity to control 

agency discretion is restricted, but viewed from the simplest perspective, presidential control and legislative control of the administration do not present an either/or choice. Presidential involvement, 

instead, superimposes an added level of political control on to a 

congressional oversight system that, taken on its own, and for reasons just given, has notable holes. In Kagan’s observations and 

theories, you have almost a blueprint for the Presidential actions 

and posture toward Congress of the current Administration. 

Proponents of the CRA concept argue that it reflects a congressional recognition of the need to enhance its own political accountability and thereby strengthen the perception of legitimacy and 

competence of the administrative rulemaking process. It also rests 

on 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 of an impending revival of the non-delegation doctrine adds 

impetus for Congress to consider—consider several facets and ambiguities of the current mechanism. Absent effective congressional 

1396

review, current instances of avoidance of notice and comment rulemaking, lack of full reporting of covert rules under the CRA, and 

increasing presidential control over the rulemaking process will 

likely continue. 

Over 30 years of experience in dealing with issues of congressional oversight has led me to the conclusion that oversight must 

be understood as not simply a constitutional prerogative, but as a 

constitutional duty and responsibility. A consistent, vigilant fulfillment of that duty preserves and vindicates that prerogative. 

There have been a number of proposals for CRA reform introduced in the 109th Congress that address more effective utilization 

of the review mechanism and most importantly a screening mechanism and an expedited consideration procedure in the House of 

Representatives. Two such bills, HR 3148 introduced by Representative Ginny Brown-Waite, and HR 576, filed by Representative 

Robert Ney, both provide for the creation of a joint committee to 

screen rules and for expedited consideration procedures in both 

Houses. HR 3148 also suggests the modification of the CRA provision that withdraws authority from an agency to promulgate future 

rules in the area in which a disapproved resolution has been 

passed with the enactment by Congress of a new authorization. 

That provision has been seen as a key impediment to the review 

process. 

Should Congress decide to act, other options would be available. 

Congress could establish a joint congressional Committee to screen 

and coordinate the review of submitted rules in a truly expedited 

review procedure in the House of Representatives, both to be accomplished under the constitutional rulemaking authority of each 

House. A concurrent resolution could establish a joint committee as 

proposed by HR 3148 and the House itself can impose upon itself 

the expedited consideration procedure for the CRA. I will leave it 

to my fellow panelists to comment on whether any of these notions 

presented are realistic or necessary, and to perhaps to address the 

question: Do we really want Congress mucking around with agency 

rules? 

Thank you. 

[Applause.] 

Mr. HALSTEAD. Our next speaker is Jack Beermann, professor of 

law in the Harry Elwood Warren Scholar at Boston University 

School of Law, where he teaches administrative law, civil rights 

litigation, introduction to American Law, and local government 

law. Professor Beermann is a noted scholar in the area of civil 

rights litigation against state and local governments and their officials. He has co-authored four books on administrative law, including a widely used case book and the Emanuel Law Outline on the 

subject. Recent articles of Professor Beermann’s include ‘‘Congressional Administration’’ published in San Diego Law Review and ‘‘The Constitutional Law of Presidential Transition’’ in the North 

Carolina Law Review. Prior to joining the Boston University faculty in 1994, Professor Beermann clerked on the U.S. Court of Appeals for the 7th Circuit and in 2004 and 2005 he taught at the 

Interdisciplinary Center in Israel and in 2002, he taught at China 

University of Political Science and Law in Beijing. 

Professor Beermann? 

1397

JACK BEERMANN. Thank you very much, and I want to thank 

Mort for inviting me to take part in this. It’s a very great opportunity for me to talk about a subject that I’ve been thinking about. 

Since a few years ago, I was asked by a committee in the Rhode 

Island legislature to help them with some problems they were having. Evidently, the voters of Rhode Island were about to decide that 

they were going to shift from a system of parliamentary government, parliamentary supremacy, to a system of separation of powers. And their legislators were trying to figure out how they were 

going to maintain their power now that the governor was no longer 

going to be a ministerial employee of the legislature, but rather 

was going to have independent authority on his own. And the legislators were no longer going to be able to sit in executive agencies 

or appoint the members to executive agencies. So it’s a very fascinating little tidbit of American history, and there have been others. A good article by Carl Bogus from the Roger Williams Faculty 

is about that transition and what led to that. It appeared about a 

year ago in the Administrative Law Review. I recommend that for 

anyone interested in separation of powers in comparative government. 

But I want to talk about—what I told Mort I would talk about 

was how certain elements that come from the state experience can 

help inform Congress in its quest to do a better job from its point 

of view of supervising the Federal agencies, and in reviewing rulemaking in particular. This question that came up this morning in 

Cynthia Farina’s topic about, you know, the President’s power— sort of whether democracy is embodied more in the President than 

the Congress. There’s reason to think that Congress, being a more 

widely representative body, maybe is the more appropriate entity 

to have control, but the President also has some claim in being a 

nationally elected official. 

I tend to be a very big believer in Congress, in the appropriateness and ability of Congress to be an effective supervisor, and I 

published an article that T.J. mentioned in the introduction about 

Congress’ role in administration, where I show how intimately and 

deeply involved Congress is in the administration of the laws in all 

sorts of supervisory ways. And I think in many ways they parallel, 

and I chose the title ‘‘Congressional Administration’’ on purpose because Elena Kagan’s article was called ‘‘President Administration.’’

I think that for all the ways that President Clinton and now President Bush are sort of so deeply involved, caused people to raise 

eyebrows. I think the same phenomenon would occur if you take a 

close look at how much Congress is actually involved. So I’m not 

so sure there’s much of a deficit of congressional review, but I think 

that if Congress thinks so and they want to figure out what ways 

to strengthen or maybe regularize their review in a better way, I’m 

willing to help. 

So what I’m going to do is I’m going to actually have five topics 

I want to try to address, and they really build on this state model. 

The first thing I’m going to do is describe the state model, and the 

second thing I’m going to do is I’m going to draw some contrasts 

with the congressional review model that exist already in the CRA. 

Hopefully it won’t depend too much on a previous knowledge of 

how the CRA works, but I think Mort has given at least enough 

1398

background that people should have to follow this. The third thing 

I’m going to do is talk about what Congress can do on its own in 

terms of unilaterally supervising the agencies more effectively, 

drawing on the state model. The fourth thing I’ll do is talk about 

what Congress can legally require agencies to do to help them, 

which can be sometimes controversial for reasons we heard in T.J.’s 

presentation on the absent person’s viewpoint about the President’s 

authority to supervise. And the fifth thing I’m going to do is talk 

about the costs and benefits of Congress using some model like the 

state model, and considerations that might push in a slightly different direction. And this may be—you’ll refer this as something 

that I tend to like to do, which is the cold water section of the presentation where I throw a little cold water on maybe some ideas 

that people may be a little bit hot about. 

So first, let me just talk about what this model is at the states 

and I call it the JCAR model because in some states it’s called the 

joint committee on Administrative Rules or Administrative Regulation. So that’s how I refer to it, and Mort referred to it a little bit, 

but in many states there’s a joint committee usually of somewhere 

around five or six members of each of the Houses of the State Assembly that sits, that is established only to review rules really, and 

so it’s—they do a rule review and just much like the CRA, rules 

have to be reported to this committee and the rule cannot go into 

effect until a certain amount of time after this report has been 

made to the committee. 

Now, the one thing that really marks the committee is that it 

has a very strong professional staff, but the legislators are all very 

much involved in this. And it’s interesting—I was making some 

phone calls to find out from some state people how it works. So I 

called Illinois since that’s where I’m originally from, and basically 

the person I got on the phone just kept extolling the virtues of the 

legislator who was deeply involved in this, who was going to run 

for Senate, and how great he would be if he got up to the Senate. 

And that was Barack Obama. So I guess he is interested in this, 

at least he was when he was a member of the Illinois General Assembly. And they needed strong professional staff at the state level 

because they have such short sessions. In many states they meet 

a couple weeks every 2 years and that’s about it. So the professional staff is very important to the ability of them to function, especially given that they’re out of session so much of the time. Of 

course, the executive branches are never out of session. 

And what’s interesting—very interesting is the analysis that 

these committees are charged with doing is really confined to the 

sort of things that courts do on judicial review, and I think this is 

because the legislature is worried about delegating too much of its 

own power to a subset of the legislature. So their idea is not that 

they just look and see whether or not they agree with the rules; 

they look for whether the procedures have been followed, and 

whether the rules are within the delegation. And that’s, I think, 

where most of their attention is focused; are the rules within the 

delegation from the original statute, but also whether the rules are 

arbitrary and capricious. Which is maybe only a smokescreen for 

their own policy views, but I think they really take it as legally 

should this rule exist, and so they’re not—they’re really not—it’s 

1399

not a free-roaming mission of any reason we want to reject these 

rules. 

Now, there are various actions that these JCAR groups can take. 

They can refer the matter to the subject committee with a report. 

They can negotiate with the agency. Many of them have the authority to place a report on public record, which may influence judicial review. They can propose a concurrent resolution disapproving 

the rule, and some of these originally started out as—it would be 

a legislative veto, two-House veto, but most state courts have followed the Supreme Court’s Chadha decision and have said that 

anything that the legislature does, which is going to have any legal 

effect, it has to go through both Houses and be presented to the 

governor. So there can’t be unilateral state legislative action; it has 

to go to the governor. 

Now, sometimes when the committee takes any action, it automatically extends the time period for the rule not being valid. In 

other words, if the rule can’t be dealt with, say, in 60 or 90 days 

after submission at the time that the legislature goes next into a 

session, which can be a year and a half actually in some states, but 

so they have this delayed effectiveness. And then if the committee 

takes action, like refers it to the subject committee or proposes a 

resolution that may automatically extend the time period for the 

rule not being effective, the committee also sometimes has the authority in some states to seek judicial review based on the conclusions in their report. They get standing; they can go into court on 

their own and challenge the rule. 

Now, you see there are some similarities with the Congressional 

Review Act having to do with—having to do with reporting of the 

agency, not being effective until there’s a certain amount of time, 

but and also the joint committee can’t veto the rule and any real 

veto in the rule has to go through both Houses because of the 

Chadha decision again. Now, there is some situation—there is the 

situation that the committee itself can cause a further delay in the 

rule and this could be problematic under Chadha and it’s problematic even in some of the states under their—because the states as 

I said tend to follow the Chadha decision. 

Now, so it’s also similar in that the ultimate result tends to be 

this possibility of a concurrent resolution that has to be presented 

to the governor and also the fact that there’s the negotiation process, which I think also happens when the CRA is lurking in the 

background. Now, the differences are also obvious having to do 

with sort of a more regularized professional staff, the joint committee, which is a great advantage, I think, because then anything 

this committee does is sort of like coming out of a conference. It 

has a great deal of authority within each House of Congress or 

with each House of the Assembly because it already has joint input 

from both sides of the Assembly, and it’s also similar—it also tends 

to be similar because it’s focused really on the rule in the delegation and I think under the CRA there tends to be a focus on the 

scope of the delegation. 

There are also similar problems, and one of the problems I think 

under the CRA, which I don’t think Mort mentioned, is that the 

CRA review is an all or nothing review; that is, when the rule 

comes to the Congress, this expedited procedure in the Senate is 

1400

only a reject or accept the rule as a whole, and that’s a problem 

because maybe you have a 50- or 100-page set of regulations and 

there may be one part that’s the most important and the most controversial, you want to let everything else stay in, but you want to 

get at this particular thing, and you can’t without going through 

a much more complicated legislative process where there’s an 

amendment rather than just an up or down rejection. And I think 

some of the state models also have this troubling question of the 

validity of the rules that aren’t submitted, but I think the smaller 

size of state government means that they don’t have as much of a 

problem of unsubmitted rules. 

Now, one of the issues is whether—whether under this model if 

the joint committee can veto a rule, whether that really ought to 

be a subject to the Chadha rule that requires action like that to 

go through both Houses and be presented to the governor or the 

President. And I think that it is probably too late to relitigate 

Chadha, but sort of raise a question about whether if a rule has 

not yet gone into effect because its been submitted to a committee 

and then there’s some action within Congress that legally compels 

the agency to pull back its regulation, whether—since the rule 

never went into effect, whether Congress is actually taking any action with changes in status quo in a way that ought to be subject 

to the requirement of bicameral presentment? 

Okay, but let me go on to my third point, which is what can Congress require on its own? What can Congress require an agency to 

do on its own? And there’s obviously no problem with Congress 

amending a regulation, passing a statute, which in effect amends 

a regulation. Nobody would argue against that. That’s a legislative 

process and I don’t think there’s any problem with Congress hiring 

more staff, hiring a professional staff, forming this joint committee, 

writing a report on rules, make public this report so it can be used 

politically or maybe also in judicial review. Although courts may 

not accept it because it may look like post-hoc legislative history, 

right? Some Congress—three or four Congresses after the statute 

was originally passed or even longer—saying that the agency now 

is not following the intent of that Congress. That can be problematic. 

But basically, they can say whatever they want. Just as the 

President can say whatever he wants in a signing statement. 

There’s no legal restraint on this committee speaking. Now, what 

about having a sunset provision on all regulations? It seems to me 

that Congress could require sunset in all regulations, which is 

something that happened in some states, or require periodic review 

of all regulations by this joint committee and say that the regulations will have to be reviewed with the report to Congress. But this 

is a very expensive process, and the state experience was not very 

good with this. Congress can also use the scrutiny with this report 

as a basis for negotiation, and the negotiation is a very important 

part of the process. In congressional review of what agencies do, 

proposals get floated, and Congress negotiates. 

The problem with this model is that the impetus to a negotiation 

only occurs after the rule has already promulgated. It’s what gets 

submitted under both the JCAR model and the congressional review model of final rules, which means that if the negotiation is 

1401

going to have any effect, an agency is going to have to publicly pull 

back a rule that it has already made final and promulgate a new 

rule, and that can be very difficult. It can also cause a problem on 

judicial review because some who are disappointed with the 

changes can say that there’s not any adequate enough record to 

justify the change, and under the current law, it seems like the 

consensus is that once an agency promulgates a rule, it’s a final 

rule. Any changes it makes are not judged based on the record that 

justified the original rule; it’s judged based on the record that justifies the changes. 

Now, I happen to think that’s wrong. I think that a rule that has 

never gone into effect and an agency decides for whatever reason, 

right after it promulgates the rule, to change the rule, that the 

change—the changed rule should be reviewed on whether it actually should survive judicial review, rather than looking only at the 

change and ask whether it should survive. That’s a long discussion 

that I can’t really go into, but in my view that it’s a mistake to be 

overly strict about changes. Now, of course, the committee—the 

congressional Committee can certainly report and recommend legislation and can legislate to alter the rules of—it can alter its own 

rules to expedite considerations on the floor although whether future Congresses are bound to follow rule changes forever is also obviously problematic. It can always modify its own rules. 

Now, can the congressional Committee on its own suspend the 

rule, or more likely can it deem by law that any action it takes like 

referring to the subset committee will then suspend the rule? And 

here you run into the Chadha problem I talked about earlier, and 

it seems there is some precedent that would say that this would 

be a permissible procedure. There’s a Supreme Court decision that 

approves the comptroller general having a role in suspending the 

effect on the government contracts, and so it seems almost like 

somewhat of an exception to the Chadha understanding because 

the comptroller general is thought of as a really a legislative 

branch official rather than an executive official. But I think my 

sense is that the Supreme Court would not allow this, but it’s 

something to think about. Whether if it’s automatic, if the only 

time that committee suspends the effectiveness of a rule is when 

it takes some other reaction, that it’s not voting just to suspend the 

rule, which looks like one subset of Congress having a legal effect, 

but rather it’s doing something else which then results in suspension of the rule, it may be—it may be—it may be permissible. 

Okay. Now, what can Congress require agencies to do? Certainly, 

Congress can set effective dates and require agencies to report to 

the committee in some form prescribed by Congress, that is, Congress has the power to make—set what the effective dates are and 

to set the effectiveness. Now, I know there are some arguments 

against this based on the unitary executive, and I’ll get to that in 

a minute, but I don’t think that that’s really very controversial. 

Now, can the joint committee require an agency to withdraw rule 

and recast it based on the committee’s views? Probably not. Probably under the Chadha decision the committee of Congress cannot 

legally require agencies to do this. We know that they do it informally all the time, but as far as legally, formally doing it, they 

probably cannot. 

1402

Now, what about Congress saying that regulations are just proposals that need to be confirmed at some point by Congress? Now, 

I think there are actually some—and this is where I’m going to get 

into this unitary executive—I think there are actually some reasons to question whether that’s actually permissible. And we’ve 

heard a little about it this morning, that if the President’s recommendation clause power is actually exclusive, which I don’t 

think it is, but some people and I know—I think that my colleague, 

Gary Lawson, is under this delusion about the structural elements 

of the separation of powers putting restraints on this sort of thing. 

I think that some people might say that basically what this is 

doing is it’s turning everything that the agencies do into recommendations, and none of these recommendations can be made 

without the President concurring, and the agency has to ask the 

President for permission to do this. Congress can’t require it, and 

the biggest problem is that it becomes unmanageable though, that 

just as—if you read the Chadha opinion, you’ll see that the reason 

Congress changed the structure of immigration law was to avoid 

having to enact a private bill every time they wanted to let somebody stay in the country who is otherwise deportable, and here you 

just imagine a Congress is not going to have the time to pass the 

high number of regulations that come beforehand. 

Now, maybe Congress could do this in some targeted areas. Let’s 

say some certain agencies that likely would have very controversial 

rules wanted to make it only proposals. You could imagine a—I 

consider this sort of a fantastic possibility, although Mort tells me 

that he has discussed this possibility—you can imagine the following procedure. You can imagine that the proposal goes to Congress, and that each House could have a rule that says when this 

type of proposal goes to Congress that if they don’t take action 

within a certain amount of time that the clerk of that House can 

enroll a bill saying that it’s passed by Congress as a bill by rule, 

that they just deem it to have passed the bill. 

Now, I think that would be struck down in a second because it 

doesn’t look like it follows the procedures for passing a bill—no one 

voted, but you could imagine Congress doing something like that, 

and maybe if we say that Congress has the authority to set its own 

rules, it has a rule which says that certain kind of bill read at a 

certain calendar, a certain kind of proposal read at a certain calendar if no one objects, it becomes a bill that gets deemed to have 

been passed by unanimous consent. We could—or even by unanimous vote—we could do that. 

Now, it seems to me that any action that the joint committee is 

going to take that’s going to have any sort of effect on what agencies do without going through an entire revote and repassage if it’s 

going to be some subset of Congress that it’s going to run into a 

Chadha problem. Now, here I’m going to talk about the costs and 

benefits of some sort of a state version used by Congress. Maybe 

this is where I’ll throw a little cold water on the idea of ratcheting 

up scrutiny. I think that there are significant costs and some benefits to increased scrutiny of rules, that sort of a JCAR type review 

or some sort of delay by a committee or maybe some sort of other 

structure is possible. And in the back of our minds we have this 

1403

ossification problem. I think part of it is, that do we want to make 

it even more difficult for rules to get made? 

Now, there are obvious benefits if Congress feels it can gain more 

control. It may improve agency awareness of Congress’ desires in 

the areas that it is going to regulate. The JCAR model, by having 

a professional bipartisan joint committee, may counteract some of 

the narrow interest group kind of lobbying that tends to have 

maybe—some people say—an overly strong influence on agency action. The committee—the Congress’ committee can help keep the 

agencies and Congress as a whole more honest in terms of what 

it’s doing, but I think it’s a very costly model—some in monetary 

and some in political cost, and I just want to go through those 

quickly. 

First of all, I have sort of a—I guess I don’t really subscribe to 

the idea that we’re in the best of all possible worlds at all times, 

but I do think that whatever structures exist, by and large, tend 

to reflect what people want, what people are willing to do, and to 

me any sort of revolutionary changes surprise me because you wonder what happened to the people that were supporting the prior situation. And I think it really only happens if there’s a huge amount 

of problem, rather than just the incremental kind of problem I tend 

to think is going on right now with the CRA. So how much is it 

really worth to Congress to be more involved? And there was this 

very important paper a while back, which talked about how much 

more effective it would be for Congress to act when somebody pulls 

an alarm and says there’s a need to act than it is for Congress to 

be out on patrol looking for problems. That is just not a good use 

of your time to be in this police patrol mode. You’re better off using 

your time when you wait for the alarm than if you go out and do 

something, and these models tend to push you more toward the police patrol model. 

So obviously it’s very costly to put in these committees. It’s a lot 

of money to set up the committee and to spend the time that the 

members of that committee are going to have to spend just hiring 

all the staff. It’s an enormous amount of time and energy. The political cost can also be strong. What is this perception if everybody 

shifts to Congress doing this? Does Congress want to be in a position where everything an agency does is their responsibility since 

they’ve taken it on and reviewed it under the thing—this new 

mechanism and implicitly they’ve approved it by not taking action 

against it? Do they want to have that perception? I think that 

sometimes that Congress gets blamed for everything now, and I 

think this may just increase the blaming opportunities for Congress. 

What about the distraction? If they are focusing so much of their 

attention on review of rules, that may distract them from more 

pressing issues. And especially the timing issue comes to my mind, 

which is these are always reviewed at the outset when the rule is 

proposed, but the real problems may not surface till two, three, 

four, 5 years down the road when the rule is being applied. And 

so obviously there’s a lot of attention that goes into it when rules 

are applied. The more attention you spend on the moment of promulgation—no matter how many professional staff members, you’re 

still not get any more than 535 Members of Congress—so the more 

1404

attention that they have to focus on the promulgation stage, the 

less time and energy they are going to have to focus on the later 

stages when the problem is at rule application. 

And again, there’s this issue of all or nothing problem, which I’ve 

talked about earlier. So I think that, under current practices, all 

the reporting that has to go, that gets done to Congress, all of the 

informal kind of administration, supervision, oversight, and all the 

reporting that gets done, it just saps an enormous amount of energy from the possibility that Congress could focus more on the 

areas where it really needs to be. Now, I do think that the JCAR 

model may be sort of easier to use than the congressional review 

model because of the existence of a professional staff. And to me, 

though, the best thing might be to have the submissions go at the 

time of proposal so that when an agency issues a notice of proposal 

rulemaking, it also sends it to the congressional Committee. So the 

congressional Committee can actually submit public comments on 

the rule and try to influence—try to influence the rule as it comes 

out rather than the rule—rather than try to influence the rule 

after it’s been issued. So that’s one thing I would say—that Congress maybe ought to look at rules the time that the rules have 

been proposed more than at a time they’re actually finalized. 

Now, as I said earlier and just to finish, the Chadha decision 

seems to be a big roadblock to any congressional Committee taking 

action that’s going to actually affect the way rules work, but it 

seems to me that the biggest roadblock is the political will to do 

anything more effective than the CRA, which turns out not to have 

been very effective at all. 

Thank you. 

[Applause.] 

Mr. ROSENBERG. Our next speaker is Charles W. Johnson, who 

served as House parliamentarian from 1994 until his retirement in 

2004. As parliamentarian, he advised House leaders on matters involving procedure and practices concerning the conduct of House 

business. 

During his tenure years as a parliamentarian he was editor of 

the House Rules Manual and the document ‘‘How Our Laws Are 

Made,’’ and was co-editor of ‘‘House Practice,’’ currently in its second edition of 2003. He is presently serving as precedent consultant in the office of the parliamentarian and he is working on a 

forthcoming book on Parliament and the Congress with Sir William 

McKay, recently retired clerk for the House of Commons. He has 

testified before various congressional Committees and has served 

as adjunct professor at the University of Virginia Law School. 

It’s my pleasure to welcome Mr. Johnson. 

CHARLES JOHNSON. Thanks a lot. I’m honored to be here. The 

Parliamentarian’s Office is kind of a unique institution within the 

House of Representatives and in the Senate—nonpartisan. I want 

to give you a little background based on 40 years. 

I was in that office 40 years to the day, so only the last 10 of 

which I was parliamentarian, but I was deputy and assistant, and 

when I came in May of ’64, there was no statute on the books that 

required or permitted expedited congressional review of any regulation that I am aware of. There was an Executive Reorganization 

Act which allowed the President to propose reorganizations and 

1405

gave Congress 60 or so days to disapprove, but beginning with the 

Nixon administration as I recall it—and I don’t think I’m alone in 

this recollection—with a Congress with overwhelmingly Democratic 

majorities in both houses and the Republican administration, there 

was some—there was obviously a combination of the awareness 

that Congress couldn’t answer all the complexities that this country faced, needed to delegate to agencies and departments some 

rulemaking authority, but needed to keep the conditions and constraints on that and needed to be able to address concerns in an 

institutional way and so these statutes began to proliferate. 

And I will just call your attention to the House rule—T.J. mentioned the House Rules Manual the last part of which—the House 

document 108-241 has a so-called disapproval section, which is a 

compilation of 32 statutes and subparts of those statutes which 

comprise exercises in House and Senate rulemaking to give privileged consideration, expedited consideration to reviews of various 

departments’ and agencies’ regulations. They are pretty much 

issue-specific until you get down to Congressional Review Act 

which is listed as number 28 out of 32. So for the first time in 

1996, Congress in 3 days, after the Contract with America had put 

in place a vision—at least the House had a vision of a new direction for government, a year later the Congressional Review Act 

came to both houses and was passed within 3 days. No report. Congress didn’t do its work as far as I know, as far as oversight, on 

why that law was needed and how it needed to be written. 

The bill emerged out of committee by virtue of utilizing the Rules 

Committee in the House. It was passed by the Senate, attached to 

a much larger bill and passed both houses within 3 days. 

So I will comment briefly as I have on one occasion and my successor John Sullivan did March 30th of this year. There was a testimony before the Judiciary Subcommittee of the House. And parliamentarians seldom testify, for a good reason, just as they seldom 

engage in symposia, you’ll discover, for good reasons. But on March 

6th of 1997 I went before the subcommittee on the House Judiciary 

Committee after 1 year of CRA being in effect, and of course our 

office was inundated with the paperwork. And I’ll stand here and 

make a self-serving statement that I don’t think all this paper 

needs to be submitted as paper to the Congress. We have the statistics on numbers; more than 43,000 in 10 years, most of which 

were non-major regulations. 

If there could be a screening process to more definitively screen 

out the non-major regulations to avoid the necessity of formal referral and the manpower—and this sounds self-serving and it is to a 

certain extent, but I think some time in Congress would be freed 

up to look at major rulemaking. Now, if there’s a dispute on what’s 

major and what’s not major, there should be an error on the side 

of having it submitted formally. That’s not to say that Congress 

can’t and wouldn’t look at non-major proposed rules, but whether 

there has to be this paper trail is at least debatable and I testified 

against the need of that in 1997. Obviously, that suggestion didn’t 

go anywhere. 

I was more also interested in the review period when Congress 

in any session adjourns without having taken final action and CRA 

requires an automatic resubmission within 15 legislative days of 

1406

the next session. Be it the next session of the same Congress or of 

a subsequent Congress. Now, in a subsequent Congress where 

there’s a new start up and new committee organization I can see 

the need to treat regulations as having been deemed to have been 

resubmitted. I don’t see it between sessions of the same Congress. 

I think there can be an amendment to this statute in that limited 

respect. 

I remember one of the first regulations that came in 1996, right 

after the law was enacted. It was a regulation on whether to hyphenate the word ‘‘rulemaking.’’ And there was some question 

about whether that was ‘‘major.’’ It was a big question about which 

committee or committees had jurisdiction over the referral of that 

regulation, but jurisdiction, as has been discussed earlier, is an important reason for perhaps Congress’ acquiescence. There was an 

example given this morning of pesticide regulations where you’ve 

got regulations that are required by the Food, Drug and Cosmetic 

Act, which are within the jurisdiction of the House of Commerce 

Committee, regulations required by FIFRA from the Department of 

Agriculture, which go to the Agriculture Committee and then somebody mentioned NOAA, which—so there’s at least two committees 

and there are two committees on pesticide regulation, so that complicates the referral and the potential review of regulations in the 

House. 

Now, it’s been mentioned that the Senate has an expedited procedure and the House doesn’t, and in this compilation of the 32 statutes—as I say, it’s in the House Rule Book, you can see it—there 

are several statutes which are silent on the question of House expedited review. Why is that? 

Obviously, you can’t be silent about it in the Senate and expect 

expedited review, and any single Senator absent an exercise of Senate rulemaking, which says the Senate must vote on the matter 

within X number of days and—in the CRA context it’s 30 Senators—can petition for a discharge of a committee within a 60-day 

review period, so there’s a way of forcing it to an immediate vote 

in the Senate. That’s not so in the House. Why is that? Because 

the House as a majoritarian body has a Rules Committee. That 

Rules Committee—if you remember any other number—if you remember this number: 9 to 4, and most of you know what that 

means. That’s the ratio of the majority to minority members on the 

House Rules Committee. 

Really, the only important rule of the House, not just in a regulatory review context but in the legislative context these days, is 

the rule that empowers the Rules Committee to bring special orders of business to the House floor. And that’s what was contemplated very abruptly, but clearly in the 1996 enactment of the 

CRA—that the Rules Committee in the House could recommend if 

necessary within the statutory review period an expedited procedure clearly with nine of the 13 members of that committee taking 

strong advice, shall we say, from the leadership as to whether or 

not to bring to the House floor, whether it’s passed by the Senate 

or not, a House joint resolution of disapproval. 

The only reason that CRA is listed in this disapproval compilation is because there is a mechanism as an exercise in rulemaking 

for the House which lays the Senate resolutions on the Speaker’s 

1407

table—that becomes the resolution finally voted on. So in a sense 

that’s a rule, and that’s why it’s put into this compilation, but otherwise the CRA stands as do several other statutes which are silent on expedited review. So you have to see the politics in that. 

It’s clear that the leadership, the recentralization in the House 

of leadership to decide what the House votes on and when, is an 

all-consuming factor, at least in this Congress certainly. Whether 

the next Congress would have a different composition and look 

more in a different direction on review of executive department regulation, since the executive will still be presumably from the other 

party, would remain to be seen. 

The reality is, though, that jurisdictions are so important. I have 

seen failed efforts in many areas on modernizing committee jurisdiction. Now this joint committee approach had some appeal. To 

create a select committee in the House to review rules regardless 

of subject matter jurisdiction is unrealistic. The notion of a joint 

committee and whether it’s a state model—Mort and both of these 

gentlemen have advocated it as the possibility—has some appeal if 

you’re not suggesting that that joint committee has real authority 

to recommend legislation or disapproval. I’m trying to be realistic 

here. 

I would think that the utmost extent of any conferred authority 

would be for the joint committee to say within a statutory framework, maybe which would have to be lengthened if they had some 

concerns, that the legislative committee of jurisdiction should then 

look more closely. I see that realistically as far as the House will 

go. In no other context is there a joint committee of any similar impact under House and Senate rules. There’s a Joint Committee on 

Internal Revenue Taxation and the Joint Economic Committee are 

the only two joint committees which really don’t—well, they can 

bring recommendations to committees, but not under timeframes or 

time-sensitive situations, so I’m just trying to bring a practical note 

to this. 

But involved here is the issue of oversight. Now, the issue of congressional oversight of the authorization level is problematic. The 

critics have bemoaned the lack of oversight from congressional authorizing committees. I was honored, Mort will recall, in November 

of 2004 to participate in the CRS panel on congressional oversight. 

And my pitch was basically that the House rules and the Senate 

rules armed committees with the authority and need the direction 

to conduct the oversight—continuous oversight of all statutes and 

all agencies and departments executing those laws. 

So the mandate is there. There is a mandate to file annual oversight programs, oversight plans that each committee has to file on 

an annual basis and then there’s the post mortem at the end of 

each Congress where committees are told to report on their oversight. So the language is there to conduct effective oversight of a 

department or a program. The problem is one of will. And with 

compressed work schedules, fund raising imperatives, Congress 

meeting 2 days a week, term-limited chairmen and to a great extent term-limited staff who are appointed by those chairmen, you 

don’t see the long timers anymore who may be more inclined to do 

effective skeptical oversight of an agency, because the staffers 

aren’t there within the committees, so that’s a problem. 

1408

All of these political reasons suggest that Congress, at least in 

its current makeup and what’s currently important to Congress, 

isn’t in the position to do all that much oversight in advance. I 

would say there’s some credibility to this notion of a joint committee for initial screening. 

I think it was Professor Farina who mentioned this morning that 

there is oversight done on the appropriations level and it’s important. It’s limited because the House rules permit in the House at 

least, and to a certain extent in the Senate, amendments to appropriation bills on the floor of each house and certainly the committee 

can tell agencies that they’re not going to get funds to conduct certain rulemaking, whether it’s proposed rulemaking or whether it’s 

the promulgation of a rule already finalized. 

Those issues come up annually and I don’t have the numbers yet. 

I told Mort I’d get those numbers, so when you read perhaps the 

results of this symposium I’ll have some numbers on how effective 

and how numerous these limitations on appropriation acts are, but 

I would say one thing: they are a heck of a lot more numerous and 

probably more effective than the expedited procedure under the 

Congressional Review Act, which as we stipulated is one joint resolution in 10 years. 

So that’s important—but it’s limited to the 1 year. You can’t say 

that there are no funds in this or any other act. It has to be limited 

to the 1-year funding availability, but it can go, and if Members of 

the Committees can raise these issues and appropriation bills are 

still, believe it or not, considered under so-called open procedures 

at least to the extent that if an amendment is a valid limitation 

on the use of funds, it can be authored and voted upon. In our office we know about this because we are asked all the time about 

amendments to restrict the promulgation or even to go so far as to 

say no funds in this act shall be used to prohibit the promulgation 

of a regulation. In other words, it’s almost a double negative. You 

have to spend your money to promulgate. 

So those are effective ways that at least Congress can symbolically vote on issues on an annual basis and they come to the floor 

under open procedures, but as far as the workability of the statute 

itself, I don’t see, regardless of who is in the majority next year and 

subsequent Congresses. The notion of 9 to 4 on the Rules Committee, I think, will continue to be a restriction against amending 

the statute to put an expedited procedure in because it would be 

in a sense a decentralization of leadership control over the Rules 

Committee. 

So it’s something to look toward, something you can debate certainly, and I am glad to be here and be part of this debate. 

Thank you. 

[Applause.] 

Mr. HALSTEAD. Our final panelist is Paul Verkuil, current professor of law at Benjamin Cardozo School of Law, Yeshiva University. He previously served as dean of that institution from 1997 to 

2001. 

After practice at two leading law firms in New York, he served 

on the law faculty of the University of North Carolina as dean of 

Tulane Law School and as president of the College of William and 

Mary. From 1992 to 1995, he was president and CEO of the AmerVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 01408 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230
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ican Automobile Association. Professor Verkuil was a visiting professor at the University of Pennsylvania and served as special master in the case of New Jersey v. New York involving the sovereignty of Ellis Island. 

He is a life fellow of the American Bar Foundation and of the 

American Law Institute. Professor Verkuil is co-author of ‘‘Administrative Law and Process’’ and ‘‘Regulation and Deregulation.’’ He’s a leading scholar of law and regulation and has published 

more than 60 articles in this field. 

Professor Verkuil? 

PAUL VERKUIL. Well, I can only lose if I say anything more I’m 

sure, but thank you for the introduction. Is Dick Pierce still here? 

All right. He left. You know, that’s like Dick. 

[Laughter.] 

Mr. VERKUIL. How many of you were here in the morning? Okay. 

So you’re in on this joke that I’m about to reveal, which is that 

Pierce blames me for his outlook on why judicial review under the 

hard look doctrine doesn’t work. And that’s only the beginning of 

it actually. You know his view is—and it’s why it relates to the 

CRA—his view is that judicial review is a political process that is 

largely determined by who appointed you and what party you are, 

whether you like or dislike a rule—he said that, again—and that 

he therefore favors not hard-look review, which is intense review, 

which tends to reject rules, but he favors ‘‘Specific States Box’’ review, which is only constitutional review, the most minimum kind 

of review you can have. And so that’s his recommendation, or at 

least it was a few years ago. 

In response to that article which he wrote on ossification of rulemaking in the Administrative Law Review, I put in a little piece 

in the summer of 1995 suggesting that, well, maybe, Dick, if you 

don’t believe in judicial review because it’s too political, then we 

ought to put review of rules in the political branch of government; 

that is to say, in Congress. And so before there was a CRA, I suggested let’s have Congress review rules, you know—post-Chadha— that actually Congress—although I did say let’s have them approve 

major rules, which is not what we’ve got, but 6 months later there 

was a statute—the CRA—which said you could disapprove not only 

major rules, but any rules. 

So we’ve come a long way. That’s been 10 years. Mort’s done a 

wonderful study, which I’ve had the benefit of, but let’s review 

these numbers again and just see what it really means. He says 

there are forty some thousand rules that have come before Congress—43,000, so that’s one number. Of those 43,000, 631 are 

major rules. There have been 37 resolutions of disapproval relating 

to—I think they were all major rules, and there’s been one, ‘‘success story’’he demise of the ergonomics rule. 

Now, it depends whether you’re a glass-half-full or half-empty 

person. Maybe that’s great news. Maybe we shouldn’t be worrying 

about this problem. Maybe, indeed, we can take this point of view 

that if the system is working so well, because Congress in the first 

place, when it delegates—if you believe in non-delegation principles, it actually doesn’t violate the non-delegation doctrine. It 

knows what it’s doing and it gives power to the agencies, and when 

these rules come back up, it’s very happy. After all, only 5 percent 

1410

of those 631 got any kind of disapproval and only one succeeded, 

so maybe you should look at it from that point of view. That’s a 

possibility. 

If you think of it as a negative, then it gets more complicated because then, just like with non-delegation doctrine, that has an 

ideal. I really think the CRA is a democratic ideal. It’s a wonderful 

thing. We want Congress to have a second look at the rules that 

are being promulgated by agencies who are authorized to do that 

promulgation only because of Congress in the first place, so it has 

an ideal set up that we ought to applaud, I think. 

Now, if you feel it’s not working—if the number one is troublesome rather than praiseworthy, then it’s a little harder to figure 

out how to make it better. Charles Johnson pointed out some important things which lead me to conclude that the paperwork burden is one problem. Well, the simple way they avoid the paperwork 

burden would obviously be just to limit these rules to major rules, 

to this 631. Why have all this other stuff up there? You don’t really 

care about this stuff. That’s not important. Now, you can say, I 

know, as we will, that agencies will slip things by you and they’ll 

use non-rule rules and things will happen. Maybe so, but still the 

real action is in the major rules, so Congress could certain limit its 

focus to that if you wanted to improve or intensify the process if 

you think there’s a problem. That’s one thing. 

Now, you could say, as I think your report did, that maybe the 

definition of major rules can be manipulated by people like Sally 

Katzen or Jim Tozzi, who run OIRA. Maybe they’ll play with the 

definition so things won’t get before Congress. I don’t know about 

that. I tend not to believe that they would do such things because 

they want to have the review in the first place, but you can answer 

whether I am right or not. Tozzi of course is capable of anything 

in this regard, so I wouldn’t be sure. 

But more than that if you want a real reform, why not just take 

the executive order 12866 and make it a statute and then we can 

talk about that and then you can give yourself a little more jurisdiction over how these rules get defined. That’s another sort of subsidiary question that comes out of this. 

In other words, the CRA shouldn’t be blamed for things that 

aren’t its fault. Indeed, I don’t think, like many things, you can call 

the CRA a failure if it was never intended to be a success. Think 

about that. There are a lot of things we can still do. I would also 

look at—I thought it was very helpful to hear Jack talk about the 

states, because, after all, one thing is these committees that can be 

formed to help review things could start earlier, or you could have 

a committee; although, Mr. Johnson, you pointed out that the 

House is not going to give up certain prerogatives by creating joint 

committees, but maybe you could. But also these committees are 

helpful and they could be started earlier. 

One of the bills that has come up doesn’t just have joint committees proposed, but it actually proposes an agency of Congress, 

something called CORA, the Congressional Oversight Review Act? 

Congressional Office of Regulatory—something. I forget the ‘‘A’’ too, 

but—so in other words, create a statute—create an agency within 

Congress to review rules. Perhaps that would work. I don’t know. 

I rather tend to think—and here again we get our plug in for 

1411

ACUS. I’d rather kind of think that agency already exists, and it’s 

been authorized, and so let’s just let ACUS do that kind of thing. 

If Congress really wants help, ACUS, after all, is an independent 

agency protected from the White House to some extent, and it’s one 

that perhaps could perhaps play that role just as well. So you could 

get more oversight and more involvement through that process. 

Now, another thing about all this has led me ponder about the 

CRA is whether you assume it’s not working properly. And maybe, 

as I say, I just want you to be skeptical about that. Maybe it is 

working properly, but if we assume it’s not then perhaps you can 

tinker with other things. Isn’t it true that Congress believes the 

courts are its friend? I really think that the White House and the 

courts have a rocky relationship, and the agencies and the courts 

have a rocky relationship based on the fierce 50 percent calculation 

of reversal rates, which Jody is about to refine for us into a more 

precise and lesser important number in the empirical work. But 

let’s assume it is, from the point of agencies, problematic with the 

reversals. I’m not sure it’s problematic for Congress. I would think 

that the hard look review—Congress might like the hard look review, and if so you can think about doing more than simply 

italicizing arbitrary and capricious, as Peter Strauss has suggested. 

You can even put hard look review into the APA if Congress was 

concerned and saw the courts as an ally in controlling vagrant 

agency rulemakings. 

So there are a lot of different techniques all of which were available, but one that I think should not be selected is to get rid of the 

CRA because the CRA does involve Congress in work it should be 

doing and the Members must learn, committees must learn an 

awful lot from this process. So it does seem to me a positive, and 

it should be if something—it could be amended, it could be narrowed as I suggest, but it is not anything that is—but a good thing 

in terms of democratic theory to put the Congress back into the 

business of taking a second look at rules and regulations that it authorized agencies to make on a post-Chadha basis when it has to 

act as a body and not just as a committee or as a single house. 

So I guess from my point of view, I don’t think I need to take 

much more time in that but to say that this is a fascinating problem. Maybe it’s not even a problem at all, but it’s a very interesting 

statute. 

[Applause.] 

Mr. HALSTEAD. Do the panelists have any rebuttals or questions 

for one another? 

Mr. ROSENBERG. I’ve heard a lot of ambiguity today. What a 

great idea the CRA is. It may be working, but we don’t know if it’s 

working. And it’s probably politically impossible to make it work. 

After 30-plus years, I am realistic about those problems. It is and 

it was intended to be, and I am not speaking facetiously, a democratic instrument of accountability for the Congress. It probably 

was passed in the form that it was with the idea that it really 

wasn’t going to work, but it could work. 

I believe that the problems raised with respect to the Chadha decision are a little bit exaggerated. Fast track is a mechanism that 

has the approval of the White House, at least with regard to item 

veto. There is nothing wrong with the President being able to proVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 01411 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230
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pose repeals of parts of laws as long as Congress does it in an expedited way—that is, with no amendments or anything like that. So 

that has never been a problem. Indeed, I think the internal mechanisms of Congress and Congress’ constitutional authority under Article I, Section 5, the rulemaking power of each house, provides it 

with sufficient authority to set up a joint committee, which would 

not be substantive, which would take care of that political problem 

if it would get that far, in the sense that you’d have representatives 

from both houses who would recommend action on rules to their jurisdictional committees after a screening process. The rules would 

have to come over as proposed rules. 

There could be a deeming process, again established by the internal rules of the houses, that presents no Chadha problems if the 

rules which were sent over are proposals. There would be no backlog and further ossification of the rulemaking process because there 

could be en masse passage by means of a deeming process; a ‘‘rule 

rejection Wednesday’’ in which hundreds of rules that were not, by 

a process created internally, challenged within a set time period 

would be deemed to have passed, and you could have 99.98 percent 

or more of the rules go through expeditiously. 

Mr. BEERMANN. Actually, I have one thing that I neglected to 

mention in my initial presentation and then I have another thing 

that I want respond to Paul. One of the things that some of the 

states did was allow their joint committee to seek judicial review. 

And I think if you create some agency like this CORA model or 

something like this, I think you could imagine that and I think 

they would have a big standing problem. I’m not sure the Supreme 

Court would allow them to—it’s because of the—I think the current 

view is that there is no injury to anyone in their sort of action as 

a Member of Congress; there has to be some injury personal to 

them or something like that. But I think that’s probably—in my 

view, that’s not a good view of the way that that law ought to go, 

but I don’t even have one of nine votes. 

Mr. ROSENBERG. One of the purposes of congressional review is 

to lessen judicial review. Congress generally does not want court to 

review its own work, and may not want them to look at this. The 

purpose of congressional review is to substitute and to get away 

from court review; to have substantial evidence or reasonable decision-making in one way or another substituted for—to have the 

courts substitute their policy concerns and considerations with 

those of Congress. That’s why you have congressional review. 

Mr. BEERMANN. Now, let me just go on and say that——

Mr. VERKUIL. But anyway, let me just ask one question. Do you 

like Chevron? Does the man that’s representing Congress—does 

Congress like Chevron? 

Mr. ROSENBERG. I don’t think Congress thinks about Chevron. If 

I were Congress, I wouldn’t like Chevron. I’ve never heard of such 

a thing as implicit delegation of authority to make up laws. 

Mr. VERKUIL. So you can get in the picture then, you can change 

that if you are concerned—if Congress is concerned. 

Mr. ROSENBERG. How would I get into the picture anymore than 

I am now? 

Mr. BEERMANN. I do want to respond to Paul’s suggestion that 

the CRA is worth retaining because of its educative value or someVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 01412 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230
1413

thing like that. And I think that the one rule that got rejected was 

a perfect storm in the sense that, what you had was you had a 

president who would sort of make it a big idea that he was going 

to do this and then you had a Congress react by repeatedly passing 

appropriations riders saying you can’t do this. 

Finally, a year before he’s going out of office, the President 

threatens to veto the appropriations bill if that rider is in there 

and you know, and now it’s way at the end of—the cost of doing 

that is much lower now that he’s at the end of the second term, 

so he goes ahead and he makes this threat and he makes it a credible threat, so they take the rider out. And why do they take the 

rider out? Well, they know that whatever rule he comes up with 

they’re going to be able to veto, and they’re going to time it so that 

the person who’s there to sign or veto the bill is his successor, so 

they are hoping it’s going to be one of theirs and not one of his. 

And so maybe what you ought to do is to have the CRA only go 

into effect in the last 6 months of any administration so that—with 

the possibility that the new president will be willing to sign the 

resolution, but otherwise it seems to me you could have an office 

in Congress who’s job it is to read the Federal Register and bring 

to attention to some committee whenever there seems to be anything that someone might be interested in. It doesn’t seem to me 

like the idea that you have to send an extra copy of everything to 

the Congress so that some office—people like Mr. Johnson, can be 

inundated with paperwork that isn’t going to go anywhere—it 

doesn’t seem to be worth the money. It seems to me that, you 

know, just the way that trade associations have people that read 

the Congressional Record or the Federal Register to make sure that 

nothing that affects them goes out. You can do it that way and it 

just seems to me that if you really want to do something effective, 

you have to do it differently. 

Now, probably they don’t want to really do anything effective. 

The way that they did it—with the Contract with America—they 

didn’t want to give the President the line-item veto authority, so 

they designed the most unconstitutional possible line-item veto and 

then passed it so they could say we passed it and those lousy 

courts got rid of it. Now, they’ve put in the Congressional Review 

Act and they can say they did it, but they know it’s not going to 

actually have much effect. I think it’s an exercise in symbolic politics rather than real regulation. 

Mr. STRAUSS. Mort, it’s striking that Congress put into the Congressional Review Act the provision that says explicitly the courts 

may not pay any attention to what we do under this act. So the 

notion that this was a substitution of congressional or judicial review is, I think, defeated by the text of the act. 

I do think that Jack’s last point is exactly the right one; that is 

to say, there is a relationship with the President here which on the 

whole is going to defeat congressional action, as long as it’s the 

same president that was in office at the time that the rule was 

adopted. 

The strong executive presidency throws out a couple of other obstacles. A strong executive president will think that it is unconstitutional to provide that agency rulemaking becomes immediately 

congressional business without his saying that it should be conVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 01413 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230
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gressional business. And reading those signing statements on my 

way down this morning, one repeated pattern I found was that 

when appropriations acts say to the President, ‘‘you may not study 

X,’’ the President issues a signing statement saying, ‘‘I see that 

Congress has said that I may not study X, but I’m the President.’’ Mr. HALSTEAD. Well, I’m sorry to have to cut off such a robust 

discussion, but we’ll take a quick 5-minute break and get into the 

next panel. Thank you very much.

1415

MONDAY, SEPTEMBER 11, 2006

Panel 4: 

PRESIDENTIAL REVIEW OF RULEMAKING: 

REAGAN TO BUSH II

Moderator: 

Curtis Copeland, Congressional Research Service

Panelists: 

Sally Katzen, George Mason University Law School

David Vladeck, Georgetown University Law Center

Bill Kovacs, Vice President for Environment, Technology, and 

Regulatory Affairs, U.S. Chamber of Commerce

Neil Eisner, Assistant General Counsel for Regulation and 

Enforcement, United States Department of Transportation

CURTIS COPELAND. This shall be known as the panel that doesn’t 

have Morton Rosenberg. I’m Curtis Copeland, I’m with the Congressional Research Service, I’m the person who called Jody Freeman and said, hey, I’ve got a database. We’ve heard a great deal 

of discussion today about whether Congress or the President or the 

courts control rulemaking; I’m here to answer the question. The reality is that on a day-to-day basis the President exerts a great deal 

more influence on rulemaking than either the courts or Congress 

and I’ll take on anybody that wants to dispute that. 

The epicenter of presidential control over the last 25 years has 

been OMB’s Office of Information and Regulatory Affairs, or OIRA. 

SALLY KATZEN. That’s easy for you to say. 

Mr. COPELAND. I know. Well, you see, I have tonsillitis still, so 

I have an excuse. So I won’t talk for a very long and each of my 

panel members here have agreed that they will only talk about 10 

or 12 minutes, so we’re good to go here I think. OIRA was created 

by Congress in 1980, as Sally will detail in a minute, by the Paperwork Reduction Act, but it’s located within the Executive Office of 

the President, so in some ways it embodies the tension between 

presidential control and congressional control. 

OIRA reviews all significant rules that are issued by executive 

branch departments and agencies, other than those issued by independent regulatory commissions. It’s a small office; there’s only 

about 50 people and about 25 of those people do regulatory review. 

In addition to the 3,000 paperwork approvals they do every year, 

OIRA reviews about 400 final rules and about 300 proposed rules, 

and they review them at a very critical point in the process: just 

before publication in the Federal Register. 

As Jim Tozzi mentioned—and Jim had to leave, but Jim mentioned this morning that OIRA only recommends changes to agencies’’ rules. And if you look in the OIRA database that they have, 

they talk about returns for agency ‘‘reconsideration;’’ that’s a polite 

way of putting it. These recommendations are from the agency that 

represents the President, and this is from an agency that controls 

the agency’s budgets, so OIRA gets a great deal of deference from 

the agencies. 

1416

In addition to the reviews that OIRA has been doing over the 

last 25 years, though, the Bush administration appears to be a little bit different, and Sally will go in to some of those differences 

in a minute. And right now there is a pending nominee for the 

head of OIRA. Susan Dudley has been nominated. Susan is with 

the Mercatus Center. And so now seems to be a particularly opportune time to discuss the role that OIRA plays from a variety of perspectives. First from Sally Katzen, who headed the office for 5 

years during the Clinton administration; from Neil Eisner, who has 

been on the receiving end of OIRA reviews for quite a number of 

years; and from David Vladeck and Bill Kovacs from the perspective of both public and business interest groups, respectively. 

So with that, I’m going to dispense with a great deal of the reading of people’s resumes, but I would note that Sally Katzen, our 

first speaker, is visiting professor of law at George Mason University Law School. She notably was administrator of OIRA from 1993 

to 1998. She became a deputy director of the National Economic 

Council with the White House in 1998 to 1999 and returned to 

OMB as deputy director of management in 1999 to 2001. 

Sally? 

Ms. KATZEN. I’m going to try to cover—can you all hear me? I’m 

going to try to cover a lot of territory and I’ll speak quickly because 

I think it’s important to leave time for questions and dialogue at 

the end. 

Since Richard Nixon, presidents, or I should say their senior 

aides, have called for greater centralized review of the administrative apparatus that is found in the executive branch. They’ve wanted to get their hands around agency rulemaking. Richard Nixon 

had something called the quality of life, Gerald Ford had the inflationary impact analysis, Carter had RARG—the Regulatory Analysis Review Group. These were all designed with the same kind of 

approach: find the important regs—call them major, call them significant, they’re the biggies—and those regulations require the 

agencies to think, to analyze, to look at the consequences, most importantly the economic consequences of costs and benefits. 

Then came Reagan in 1981 and he used what had been created 

under the Paperwork Reduction Act, the Office of Information and 

Regulatory Affairs, to carry out what he called and has been called 

Executive Order 12291. 12291 took a giant step forward from the 

‘‘consider these things and study these things’’ to actually prescribing or establishing a standard for approval. You had to limit 

your regs to those that would maximize net benefits to society. 

There were three key features of the Reagan executive order. 

One is centralized review, and this pertained not just to significant 

regulations but all regulations were going to be reviewed by 

OMB—that agency that is closest physically and psychologically to 

the President than any other agency is going to have its chance to 

review the work product of the agencies before they see the light 

of day or are published in the Federal Register, as the case may 

be. That’s centralized review: a statement we’re going to do it. 

Now, he limited it to executive branch agencies. Although he had 

an opinion from the Office of Legal Council in the Justice Department that constitutionally he could extend this to the independent 

regulatory commissions, he chose not to because he recognized 

1417

what a ‘‘ginormous’’ step he was already taking. The centralized review is key one. Key two is the role of economics. This is a document which is not very long and repeats net benefits to society, 

costs, costs, costs, costs continually throughout the document. Look 

at the economic implications. And the third was, it was cast in 

terms of regulatory relief—not regulatory reform, not regulatory 

improvement, regulatory relief. Those were the three key ingredients. 

Now, over the 12-year lifespan, 8 years of Reagan, 4 years of 

George Herbert Walker Bush, a lot of questions were raised, questions about separation of powers. This comes from a Democratic 

Congress watching a Republican White House treat their statutes 

in a way that they had not anticipated, holding up regs and doing 

things that they didn’t like. So you start getting the beginnings of 

this question of who is supposed to control. 

You also saw a lot of arguments about transparency because certainly during the last years of the Republican administrations in 

the eighties and early nineties, OIRA was known as a big black 

hole. You didn’t know what happened. The reg went over and you 

couldn’t find out that it was there at OMB. And then nothing was 

heard. You didn’t know why, who, when, nothing. It might come 

out. It might come out very different, although you didn’t know 

how it went in so you don’t know how different it is when it comes 

out. And I loved Jim Tozzi’s comment that it was just a recommendation. In any event, it was not a very transparent process. 

The third was this reliance on economic analysis, this insistence 

of looking at the costs and benefits as though only that which could 

be quantified counted. And I wish Cynthia—is Cynthia Farina 

here? She can give me that great quote from Einstein, the office in 

Princeton, is that not everything that you can count—not everything——

CYNTHIA FARINA. —that can be counted counts, and not everything that counts can be counted. 

Ms. KATZEN. Right. Perfect. That’s knowledge. So in—I guess it 

was early spring of 1993, we have a Democratic president, Clinton, 

and a nominee to be head of OIRA, and my first task is to look at 

the executive order and recast it. Some probably, David, would 

have wanted us to tear it up, but there were some things that we 

thought were important and to this day, notwithstanding my own 

experiences, I believe it’s an important document. We wrote 

12866—this was Clinton’s executive order, 12866. Some things 

were the same; we assumed the legitimacy of centralized review 

and we speak to the importance of economic analysis and essentially we kept the same process. We wanted to look at things at the 

notice stage and at the final stage before they saw light of day. But 

some things were different. In President Clinton’s executive order, 

while we spoke to the legitimacy of centralized review we reaffirmed the primacy of agencies. The agencies are, after all, the 

entities to which Congress has delegated the power; the agencies 

are, after all, the ones who have experience and expertise in the 

subject matters involved. You have 25 people at OMB, and they’re 

not going to have the same kind of institutional memory, the same 

kind of knowledge, the same kind of expertise that the agencies 

1418

have. So while they have something to say and they will say it, we 

reaffirm the primacy of the agencies. 

Second is, while we encourage quantification to the extent possible, we explicitly recognized that non-quantifiable costs and benefits are essential to consider. That not everything can be counted 

and it is very important to take in to account those things which 

can’t be counted. We also made it clear that this economic analysis 

was not dispositive, but simply informative. It is useful to know 

what the consequences of an action might be but it might not tell 

you the whole picture. There were significant changes that we 

made in transparency with meetings, with outsiders, we’re now 

going to invite representatives from the agency, we’re going to keep 

a list of them in our docket room, musty as it may be, we were 

going to make it clear when documents came over to OMB, and we 

were going to try to limit to 90 days our review period. 

Most importantly from our perspective we tried greater selectivity. Instead of all regulations, we were looking only at the most 

significant regulations. Instead of trying to see 3,000 to 4,000 regulations a year, we were looking only at a much smaller percentage—300 to 400 in fact. 

More important than the changes that we actually made was I 

think the change in tone. We wrote the document in a somewhat 

mushy way and that was designed to reflect an approach that was 

more collegial, more cooperative with the agencies than a fiat from 

on high. 

Now, this tone was truly reflected in terms of the implementation because, during the Jim Tozzi/Jim Miller days, the OIRA staff 

was generally known as lean, mean junkyard dogs. And again any 

comment by Jim Tozzi that they were recommendations is truly 

laughable. They were tough and when they spoke, you listened period. We tried something a little less heavy-handed and I got 

tagged as being the OIRA administrator who believes in the hot 

tub theory of regulations. We’ll get in the warm water and see how 

it is and we’ll just all be friendly and we’ll work this through together. But I would insist sometimes you can get more accomplished by being nice and cooperative and helpful and friendly than 

by being a bitch. At least this was my own experience and I happen 

to think that we were relatively successful in the hot tub theory 

of regulation. 

In 2000, George W. Bush became president and we have a 5-year 

period of how his people have interpreted the same document because, while there was an amending executive order, 13528—258, 

something like that, there was no substantive change; it’s a process 

change that replaces the vice president wherever he may appear 

with either the chief of staff or the OMB director. In all other respects they kept the document the same. While the words are the 

same, the implementation is not. There has been a very good study 

actually by GAO which looked at—and I’m smiling because Curtis 

was one of the people who participated in that—in fact, he led the 

effort, I think there—was to look at the early implementation and 

President Bush’s nominee. And then administrator of OIRA John 

Graham explicitly said he wanted to be a gatekeeper; none of this 

collaboration stuff, he wanted to be a gatekeeper. In addition he 

took the economic analysis that we thought was an important input 

1419

and he made it a really important input. I mean not quiet dispositive, but close. The economics were going to rule. 

He did move well beyond us in transparency, and to his credit 

I think opened up the process appreciably more by posting things 

on the internet and making it a lot easier. It is fair to say I think 

that the primacy of the agencies began to take a slight backseat, 

if they were not put in the trunk, and this I think is a question 

not of his or my personal preferences, but of the fact that the administrator of OIRA is a presidential appointee who well serves the 

President that has selected them. And in John Graham’s instance, 

you’re talking about a president who has been very strong on unitary executive and the strength of the executive branch and the 

centralized control. 

John Graham pushed the envelope, I believe, and he did it with 

some significant success. He reinvigorated return letters. This is 

sending a regulation back saying we don’t like this; redo it. Now, 

maybe it says reconsider, but there’s also a six page single spaced 

appendix telling them how they should be reconsidering it. He used 

the Information Quality Act, which had been stuck in a—I think 

it’s three paragraphs in a seven hundred page bill, to completely 

change the way challenges could be made to agency data. He rewrote cost benefit guidance. We had called it guidance. It is now 

no longer guidance; it is Circular A-4, which you will follow or bear 

the consequences if you don’t. All the nice preparatory language we 

had has been changed by shall, must, and other terms of enforcement. 

He developed peer review guidelines so that all scientific information would have to be peer reviewed and following certain strictures, which OMB would get into. He has proposed risk assessment 

guidelines, he has proposed guidance guidelines, he has proposed 

a number of things, all which speak to expanding presidential control of the agency work product. This is over a 16-, 17-year period. 

It has grown. 

I think the one thing that has happened is that the issue of 

whether or not it’s legitimate for centralized control, centralized review, centralized input—whatever word you want to use—is now 

an issue of the desirability not the legality. You rarely hear challenges to the legality of it. And I think that reflects real politics 

in this town, and that’s politics with a small P, not partisan, but 

just real politics, of the strength of the President and what he is 

trying to accomplish. 

And with that, I guess I’ll turn it over to Neil. 

[Applause.] 

Mr. COPELAND. Thanks, Sally. 

Neil Eisner is the assistant general counsel for regulation and 

enforcement at the U.S. Department of Transportation. Previously 

he held positions as assistant chief counsel for regulation and enforcement and deputy assistant chief counsel for litigation of the 

Federal aviation administration. Mr. Eisner is a member and a 

past chair of the ABA’s Section of Administrative Law and Regulatory Practice, and adjunct professor at the American University 

College of Law. 

Neil? 

NEIL EISNER. Thank you, Curtis. 

1420

My job is to oversee the rulemaking process of the Department 

of Transportation. The Office of Management and Budget has to 

approve not just the rules that come through my office for review, 

they have to approve our budget, they have to approve our reports 

to Congress, they have to approve our testimony. It’s kind of an 

oxymoronic experience to be asked to be on a panel to discuss what 

I think about OMB review of our regulations. 

That said, and partly based on my experience in doing somewhat 

the same thing within the Department of Transportation, I have a 

very positive feeling and very positive thoughts about OMB’s role. 

I may be somewhat unique in the Government. I may not be speaking for a lot of agencies, but they can be and are indeed valuable 

to us in terms of trying to do a good job in a rulemaking area. Most 

people do not like to have their work product reviewed by someone 

else. After they put a lot of time into it, they think they’ve gotten 

it right, but there are a lot of advantages that overseers can do. 

They’re not necessarily better or brighter, and that’s important for 

them to keep in mind also, but they have oftentimes a broader perspective, they have more experience oftentimes with the process. 

They’re more removed. They’re not the ones who are on their way 

out to rush to go to a big conference for industry and they want 

to get a rule on the street right away. They’re not necessarily the 

ones who had made a promise to industry to get a rule out, or to 

an environmental group. 

So they bring a different perspective to the thing. They have 

broader experience in looking at things like innovative solutions 

and trying to solve problems. And sometimes quite candidly they, 

or even in my office, we can see big mistakes that would’ve been 

made but for that oversight. For example, one agency once sent to 

my office for review a rule that caused a little confusion to my staff 

person who was reviewing it. He called up the agency and he said 

you’ve got $7 billion in one chart and you’ve got $7 million in another chart. I think they’re supposed to be the same. How much is 

this rule going to cost—$7 billion or $7 million? The sad thing was 

they didn’t know. It took them a couple of weeks to go back and 

straighten out their numbers. It was a $7 billion proposal and the 

agency wasn’t clear on that, and without some level of oversight 

they would have put that proposal out on the streets. 

So there are three key points I want to make about OMB—why 

I think they are very valuable and why they are helpful to the 

process, but in each instance I’ve got some counter points that I 

want to make. 

First point is OMB’s power. They’re mere existence helps agencies do a better job with their rulemakings. Senior officials—and I 

don’t necessarily mean me, but I mean other senior officials in the 

Department of Transportation—may have problems with a particular proposal or a particular rule. They may not think it should 

go out. But oftentimes, for example, the administrator of an agency 

or an assistant secretary can backdoor those officials and go to the 

Secretary and get the Secretary’s approval to get it out. Oftentimes 

what helps then is simply reminding people that the rule still has 

to go through OMB. 

Sometimes stupid ideas are proposed. I mean really stupid. I will 

not embarrass anybody with some of the things that I’ve heard 

1421

over the years, but when I’ve heard some of these I simply look at 

them and I say ‘‘don’t forget this rule has to go through OMB for 

review.’’ And you’ll see the look in their eyes and they’ll say, ‘‘well, 

I think I’ll think about this a little bit longer.’’ Sometimes their just being there is enough. It’s important to remember because some people like numbers and they like to say, 

hey, this administration is not doing as good a job as others because they haven’t returned as many rules. You don’t have to return a rule to have an effect. 

My counterpoint to this, however, is who is the decision-maker? 

I don’t mean this in the sense we were talking about this morning 

about the power of the President and whether or not the President 

has the authority and the power to make these decisions. What I’m 

talking about is it’s not even just Sally in OMB and whether she 

can speak to the President; it’s whether a GS-13 or 14 staff person 

working for Sally is speaking for the President. Sally doesn’t 

know—didn’t know about every change that the desk officers would 

make or suggest to the agencies in a particular document. And the 

agencies don’t feel that they can fight on every one of these. I am 

only aware of one instance in the Department of Transportation 

where any Secretary took an appeal to the President of the United 

States. You give in and you don’t necessarily always make the rule 

better because some staff person won’t approve it until it’s 

changed. 

My second point is about OMB review—they do three very valuable things while we’re looking at the rulemaking document. Number one, they do require high quality analysis. This is not to say 

that a lot of agencies wouldn’t otherwise do an excellent job. It is, 

however, to say that there are some that would not, and indeed 

there may be more than just some; there may be a lot of agencies 

that wouldn’t do an analysis of any kind or if they did it, it would 

be relatively weak. OMB is there. They are requiring the analysis 

in appropriate situations. They also ask good questions. They have 

a tremendous amount of experience in the area; they have very 

good economists. They can make suggestions on better ways to look 

at things. They can help the agency do a better job. And they’re 

also, as I said earlier, one step removed so they can be a bit more 

objective sometimes. 

My third point in this area would be they also get other agencies 

involved more effectively than sometimes the department or agency 

can. I can go to an EPA or I can go to a Department of Labor, I 

can go to a Department of Commerce, but I may not necessarily be 

able to get a good decision out of them in a timely manner. Or I 

may get a decision where there’s disagreement. OMB can help get 

the decision out in a timely manner, and they can help make sure 

that there’s a reasonable agreement that will resolve the issue if 

they can’t. Both agencies are working for the same president. 

Somebody’s got to decide how to resolve this. 

There are some counterpoints here, however. Agencies don’t always have all of the data that OMB would like them to have. They 

have a lot of expertise. When an FAA pilot, an expert FAA pilot 

has flown in the cockpit for hundreds of hours, he may not have 

data but he’s got some real good ideas of what works and doesn’t 

work well in the cockpit. We can’t always come up with the data 

1422

to prove the things that we believe are necessary to ensure safety. 

And it’s sometimes referred to as tombstone mentality: you have to 

wait until people die so you have good data to show that you need 

to take action to save the next set of lives. 

I’m not saying this is an everyday problem, but it does happen 

and sometimes Congress will get so frustrated at the inability of 

the agency to get the rule out that they will take away the authority to require any kind of an analysis to support it. And I’m not 

going to tell you that’s a good idea. I think that’s a bad idea. I 

think analysis can be helpful; I think the agencies may not necessarily have to make the decision based on whether the benefits 

exceed the cost, but ought to know what the rule is going to cost, 

how many people it’s going to affect, and what the benefits are 

going to be, and indeed whether they’ve done things like already 

count those benefits to justify another rule that they’d issued earlier. 

Another problem—another con point is there should not be an assumption that OMB economists are necessarily better than agency 

economists. We’ve sometimes confronted that when we say, ‘‘well, 

our experts say,’’ and OMB staff will say, ‘‘well, our experts say’’ and therefore it has to be changed. 

And regardless of whether you think that rulemaking is a political process, we have to remember that if it is too blatantly a political decision, the agency may have trouble effectively implementing 

the rule. You want people to think that it is a good, objective way 

to fix a problem and not something that was a political decision to 

satisfy certain parties. 

And then, to use a phrase that Sally used for many years when 

she was at OMB, OMB has to avoid saying, ‘‘we gotcha.’’ There is 

a tendency sometimes to have to prove the need for your office. I 

could have a very similar kind of problem in my situation. And if 

you have to prove your need by saying to the agency ‘‘I’ve got you,’’ you’re embarrassing the agency and not having the good working 

relationship that Sally referred to. 

My third and final point was that OMB does issue good guidance. They do some very, very good work with respect to economic 

analyses. They’re working on something now on risk assessments. 

They’ve worked on some things on peer review. They provide good, 

helpful knowledge to the agencies, especially those that are not 

used to doing these kinds of analysis. And there are some situations, such as discount rates or having a uniform decision from 

OMB on what discount rates are appropriate, that can be very 

helpful. 

Here again, let me put in hopefully the last pitch you’ll get today 

about the Administrative Conference in the United States: OMB is 

not, and they would probably agree, they are not neutral experts. 

That’s an important counterpoint. They can put out very good economic analysis, and you may not see our next two speakers agree 

on whether a particular kind of analysis is good. They may think 

it hurts or it helps their particular interest. 

ACUS was a neutral body. OMB is involved in the rulemaking 

decisions and you don’t always get truly objective neutral advice 

from them. But also and I want to stress this—the term you’ve 

heard a few times today—the ossification of a process. Sometimes 

1423

there are too many requirements, too many ‘‘guidance documents’’

that are out there. I had one person I used to refer to quite frequently when I had got to my job because I had relatively little experience in the rulemaking area; most of my experience was as a 

litigator, so I used to call him for help all the time. And one time 

many, many years later I called him to remind him that his agency 

had not done something they were required to do under a particular requirement. And he said ‘‘Which requirement, Neil? I 

mean, there’s so many of them out there that change so frequently 

neither I nor my staff can keep on top of all of this stuff.’’ So what 

is intended to be good, what is intended to be helpful, sometimes 

can overwhelm the process. 

Again I want to stress I am positive on their role. It helps me 

do a better job. That they’re there—their mere existence helps me. 

It works reasonably well—the process—but there’s room for improvement. 

Thank you. [Applause.] 

Mr. COPELAND. Thanks, Neil. 

The next speaker is David Vladeck. David is the Director of the 

Institute for Public Representation and associate professor of law 

at Georgetown University Law Center, teaching courses in civil 

procedure, and first amendment litigation in Federal courts. He 

also serves as a scholar with the Center for Progressive Reform 

and is on the Council of American Bar Association’s Regulatory 

Practice Section. Prior to joining Georgetown’s faculty in 2002, he 

spent over 25 years with the Public Citizen litigation group, serving as its director from 1992 until 2002. 

David? 

DAVID VLADECK. Let me just begin by also putting in a plug for 

ACUS. I didn’t realize that was one of our jobs today, but having 

served on the Administrative Conference for quite some time, it’s 

the best value for your dollar in Washington, D.C. We were able 

to bring together groups of scholars and practitioners, Government 

lawyers, and others to roll up our sleeves and work shoulder to 

shoulder on real issues and put partisanship aside. The demise of 

the Administrative Conference has really been, I think, a blow to 

the development of administrative law. I think it’s high time that 

we saw it renewed. 

I do not have the same praise, however, for OIRA, and what I’d 

like to do is spend my brief time this afternoon persuading you 

that centralized review for its own sake is not a good idea. After 

all, the person who gave us centralized review—it was not Ronald 

Reagan; it was Stalin. 

[Laughter.] 

Mr. VLADECK. And the question really is whether centralized review the way we practice it makes any sense. And I’d like to explain why I believe it does not, and why Neil’s point—although I 

rarely disagree with Neil—well, Neil’s points can be addressed 

more sensibly in other ways. 

Indeed the ultimate irony I think is that if you measure the output of OIRA, if you measure whatever benefits Neil and Sally are 

willing to ascribe to, and you subject it to the cost-benefit analysis 

that OIRA subjects every major rule to, OIRA flunks. It ought to 

1424

be dismantled, it ought to close up shop because, under any kind 

of cost-benefit analysis, it fails. 

Why do I say that? I think there are six major flaws in the way 

centralized review works in the United States and has worked 

since the first days of the Reagan executive order. For one thing, 

it’s a one-way ratchet. For people who care about public health, 

there is only one way OIRA reviews rules: not to strengthen them, 

but to weaken them. OIRA’s mandate is to buy protection at the 

lowest cost possible. Public health? A secondary consideration to economics. 

Discounting is a big issue. Human lives that are going to be lost 

20 or 30 years down the road are devalued to the point of having 

no real play in the analysis that goes on at OIRA simply because 

the time value of money ends up discounting the value of their 

lives to the point of nothingness. Old people, they don’t count; their 

life expectancies are too short. Injuries, illnesses, things that are 

hard to quantify apart from death, those factors, too, are generally 

put to the wayside. 

So the costs of substances like cadmium, which rot out workers’ kidneys, are devalued by OIRA because it is too difficult for economists to figure out exactly what kidney dialysis, the loss of income, 

the pain that the family suffers—it’s too difficult to quantify those 

costs and include them in the rulemaking calculus. 

So the first problem with OIRA is that it is, and always has 

been, a one-way ratchet. It’s a way that the administration, if it is 

so inclined—and I understand at times some administrations have 

not been so inclined—but it is a way for the administration to 

ratchet back the rulemaking process in a way that detracts from 

the statutes that Congress passes. If Congress requires rules to 

protect workers, it doesn’t say ‘‘as cheaply as you can and we don’t 

really care very much if a few of these people die because it costs 

a little money to protect their lives,’’ yet that is the mandate OIRA 

has taken since its very first days, and that is the way it is operated. 

Secondly, we’ve enshrined institutional incompetence. It is hard 

for me to sit and listen to Neil praise OIRA when we both worked 

on the rules that the Department of Transportation has tried to 

issue to protect the American people only to have their technical 

judgments about safety overturned by OIRA. The next car you buy 

is likely to have a gauge on the dashboard to tell you when its tires 

are under inflated. It turns out that’s a very important safety technique. NTSA developed a rule that should have been in effect now 

to devise a standard to ensure that the warning light on your dashboard actually tells you when tires are deflated. NTSA has engineers. It has people who understand automobiles from top to bottom. NTSA’s judgment on this was overturned by the economists 

at OMB and OIRA who had been pressured by the tire industry to 

try a different approach. Ultimately, we got the courts to set it 

aside, but the delay in the rulemaking will cost people their lives. 

Why? Because OIRA’s economists told—and mark my words they 

tell—NTSA that it had to change its standard. That is (unintelligible) in the worst way. We are having economists second guess 

highly technical judgments made by agency experts. That is not 

good government. 

1425

Third, secrecy still affects the process. Yes, Sally made certain 

changes that I think did provide a measure of openness that was 

nonexistent in the black-box days that preceded her when you had 

no idea what was going on in OIRA. Now there is more of a record, 

but the opportunities for secret dealing between OIRA and agencies 

exist. They are still being used. To describe the process as open in 

my view is simply inaccurate. There is enormous amount of communication between OIRA and the agencies that precedes the rulemaking process. It is off the record, it does not ever appear in any 

public rulemaking record, and that is where the real work is done. 

There’s enormous delay that is still built in to the process. We’ve 

heard the word ossification used many times this afternoon. That 

is simply an academic way to say that the regulatory process is 

now so overlaid with procedures, with regulatory requirements, 

agencies cannot get their work done in a reasonable time. OSHA 

cannot promulgate a standard in under a decade—a decade, that’s 

10 years, a decade. OSHA is confronted with a serious problem 

about workplace safety but must go through the regulatory process 

and to satisfy its masters at OIRA. It’s going to take 10 years to 

have regulatory agencies that are charged with protecting public 

health and safety having to run a Rube Goldberg kind of gauntlet 

in order to take action to protect the public. The CRA is irrelevant 

in large measure because the discretionary rulemaking done by 

health and safety agencies is over. Most of the rules that you see 

as part of the CRA are rules that are required in some way by statutes that you wrote. 

The tire standard that Neil and I both worked on—that wasn’t 

because NTSA decided it was a good idea; it was because you in 

Congress decided it was a good idea, and told the agency to issue 

a standard. Of course, you didn’t say ‘‘issue the standard that 

OIRA wanted,’’ which is why the courts set it aside. 

There is also the problem, I think, of the agency personnel having to share two masters. Neil obviously has successful navigated 

that relationship. Many others who have served in high capacities 

in administrative agencies complain bitterly about OIRA, and having to first do your homework and have the teachers at OIRA grade 

it and often send it back. Not because the agency fails to satisfy 

its statutory mission—the mission that you in Congress has given 

it—but because the agency has failed to do things the way OIRA 

wants them to be done, not the way the statute requires. 

One of the hidden costs of OIRA—this is my fifth concern—is 

that it has driven regulation underground. Part of the reason why 

there are fewer discretionary rules is because it is not worth it for 

the agency to have to submit to the OIRA process. So much of what 

took place in the course of rulemaking, where the public can get 

involved, where regulated industry can get involved in an open and 

transparent process, much of it now happens in ways that are completely untransparent. They are in enforcement actions. They are 

in guidance documents that are issued by edict, not after a public 

process. Much of the regulation of the economy these days takes 

place not through those notice and comment rules that are promulgated in the public process, but are simply issued by agencies. That 

to me is a serious step backwards. It has serious rule of law impliVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 01425 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230
1426

cations, but it is a direct and traceable consequence to the hamhanded way OIRA regulates what the agencies do. 

So, you ask, what is the problem? If, in fact, OIRA pushes an 

agency to do something that is inconsistent with its statutory mandate, where are the courts? Why aren’t there more challenges to 

OIRA’s authority? The answer is, I think, quite a simple one: oftentimes the rules are changed in a way that favors industry at the 

expense of public health, and there are rarely organizations that 

have the resources to undertake judicial review. I’ve been involved 

in many cases challenging agency rules changed as a result of 

OIRA’s actions, and by and large we’re pretty successful. But judicial review is frighteningly expensive, it takes enormous amounts 

of resources to do, and because the harms that are visited by the 

way OIRA does its work tend to be borne very broadly by the 

American people, it’s often the case that there is not an organization, an advocacy organization or some group of constituents, that 

are able to take the case to court. 

So the process I don’t think has a clear self-corrective mechanism 

other, I think, than the people in this room. One constituency that 

is harmed each time OIRA tells an agency to do something that is 

not consistent with the statute that the agency is enforcing is Congress. When OIRA first started to engage in strict regulatory review, the largest outcry came from Congress. At that time it was 

a bipartisan outcry even though, as Sally pointed out, we had a Republican president and a Democratic Congress. I don’t think there 

has been an oversight committee hearing on OIRA and its function 

in quite some time. I know the GAO’s issued some reports, but I 

think Congress has largely been quiescent on this issue, and if 

Congress wants to cede its authority in this way to the President, 

that is Congress’ choice. But it is a choice that has, in my view, 

quite profound and quite deleterious consequences. 

Thank you very much. 

[Applause.] 

Mr. COPELAND. Our last speaker here today is Bill Kovacs. Bill 

is vice president for environment, technology, and regulatory affairs at the U.S. Chamber of Commerce. His division initiates and 

leads complex multidisciplinary national issue campaigns on such 

issues as sound science in the regulatory process. In his former life, 

among other things, he was chief counsel and staff director for the 

House Subcommittee on Transportation and Commerce. 

Bill? 

BILL KOVACS. Let me get rid of all these notes up here. Well, 

thank you very much. It’s really pleasure to be here, and I guess 

it’s a unique situation for me. I had two firsts today. I was looking 

over the panel: I am the only person in the entire program who’s 

not a law professor, so I don’t know what that means. After what 

I say I will probably flunk all of their courses. And the second, 

which is really the more remarkable, is I’m probably going to be 

in the process of defending the deep, dark OIRA. 

I would make the argument that the agencies, not OIRA, control 

the process, and the agencies through—I’ll use the case example of 

the Data Quality Act—have absolutely submarined all of the OIRA 

authorities. So why does the U.S. Chamber care about the regulatory process and all of these technicalities, and whether Congress 

1427

is doing enough or the President’s doing enough? Well, we care because we’re the ones who pay the bill. The bill is $1.1 trillion a 

year, and that’s about four times more than all the taxes paid by 

corporations in the United States. 

Second, the business community has to deal with roughly 

191,000 regulations. And when you deal with this process every 

day you understand how complex they are. And the Congress—I 

mean, I’d be the first one to tell you, these people have tried. I 

mean, you’ve got more laws trying to control the regulatory process 

than you can get. And they have some good ones like Section 602 

[610] the Regulatory Flexibility Act, where the agency is to review 

the regulations every five [ten] years and come back and inform the 

Congress as to which regulations they’re going to do so they can 

get rid of old ones. And the agencies have, in effect, told Congress 

to go to hell. And Congress does have a lot of stuff on its plate, so 

everybody faces this standoff that the agencies tell OIRA to go to 

hell and they tell the Congress to go to hell. So this is why when 

we’re dealing with it; the focus is really on the agency. 

And the case example is really the Information Quality Act. 

When Congress passed that act in 2001, what it specifically said 

to the agencies is, look, we have to make the system transparent; 

we have to use the best quality information; it’s got to be objective, 

it’s got to be useful, and it’s got to be accurate. And from that 

OIRA began to go out and then build one a series of regulations 

throughout the agencies on how to implement the Information 

Quality Act plus an appeals process. Secondly, they began putting 

in what they called the peer review guidance, which is to say that 

we ought to have the right types of scientists reviewing the program. They then moved in to risk assessment, and they moved in 

to a variety of other areas such as good guidance as to what’s the 

difference between a regulation and just something that’s more of 

an interpretative statute. 

But each of these rested upon the Information Quality Act, so the 

key, when you’re looking at OIRA’s powers—yes, you have Executive Order 12866, which has been discussed all day, which gives 

certain authority, but that can be repealed instantaneously by the 

next administration. The IQA was the first time there was an attempt to put some real teeth into OIRA, to begin driving the agencies to use good information. 

So why does the Chamber care about good information? One is 

it has been our policy because we’re the ones who get sued when 

there’s a screwup. If we comply with a regulation and its wrong 

later, it’s not a defense: we still get screwed and we still get sued. 

That’s where industry is. So we have taken the position that there 

needs to be total transparency in the process. Not one single environmental group or public interest group has ever stated, ‘‘we agree 

with total transparency in the process.’’ Put some models out in to 

the public domain. Put the studies out; put the identification of all 

the grants out. We’re willing to live with the information because 

the information helps up prioritize the risks, and that’s what’s 

most important. It helps us prioritize how we’re going to spend our 

money, and in the end that’s how you make good public policy. It’s 

really through good information. 

1428

Now, the Information Quality Act was attacked literally by every 

public interest group in the entire United States. No one supported 

it. We were going to overwhelm the agencies; it was going to be 

like hundreds of thousands of requests were going to put in. Well, 

none of these people have ever figured out how hard it is to file 

an Information Act request. Initially, in 2003, there were 56 information requests that were filed; 24 were appealed. In 2004, there 

were 129 with nine appeals; in 2005, there were 25 with 11 appeals; in 2006, there were four with no appeals. And I’ll tell you 

why; it was going down hill. But the difficulty of filing an information request is that you have to figure out why the data that’s 

being used by the agency is wrong, and then provide them with the 

correct data. 

So in one instance—and I’ll give you an example of how far off 

base agencies can be—EPA has a variety of databases; they have 

hundreds of them. Well, we took their 16 main databases and we 

decided to look at the value of the chemical in each of the databases. Well, in 16 databases the same chemicals all had different 

values. We said, wow, what does that mean? Well, we had our experts in environmental issues go back and recast the standard 

cleanup of a superfund site. Well, the difference between using the 

transport database and the CHEMFATE database was the difference between a $7-million cleanup and a $65-million cleanup. So 

it transfers to the real world. We decided—we told EPA, we’re not 

suing them; we don’t care. This is a process that’s very complicated. 

We need to get it done. We gave them 100 percent of all of our experts’ work. We gave them all the databases, all the printouts. We 

gave them everything. And what we got back from EPA is ‘‘petition 

denied.’’ Then we appealed and we said, look, what’s your problem? We 

need some specifics. Well, they said a variety of very interesting 

things. One is ‘‘based on your petition we put a disclaimer on the 

database, so you use it at your own risk, and if it’s wrong, who 

cares because you’re the one responsible.’’ Two, ‘‘we’ve transferred 

ownership of all the databases so we don’t even own them anymore; they’re just on our website—we’re borrowing them from Syracuse Environmental.’’ So we went through. They said, ‘‘well, we’ll 

reconsider it again.’’ Two and a half years later, EPA is still reconsidering the same thing and we’ve given them all the information. 

This is crucial public policy. 

The second one, which was the salt litigation, when we took 

something a little bit simpler and we said, does the Data Quality 

Act have any ability to—or the Information Quality Act, have any 

ability to be enforced? And the Federal court said, no, there’s no 

standing on any third person anywhere in the world. There was no 

injury in fact. This is completely between OIRA and the agencies. 

Well, OIRA has no ability even to make the agencies, once they file 

a denial of the information request, even to review it again or put 

it before an independent ombudsman. So when we look at OIRA we 

look at them as—they’re really, I think they’re a valuable organization in the sense that you have somebody to talk to, but you can 

also, if you want to, go and get an insurance policy and you can 

go to a therapist too. But the bottom line is you get the same type 

of information out. OIRA really doesn’t have that kind of power. 

1429

So we in the business community, we think it ought to be transparent, we think everybody in this room ought to agree with transparency and the business community is going to lose in some of 

them. Sometimes they’re going to win, but the bottom line is good 

policy is going to be made because we can prioritize risk. If we’re 

going to take this process seriously, the agencies need to understand that they have to cooperate with Congress. There are laws 

on the books, and they have to spend a little bit of time helping 

Congress out. They are the ones with the expertise. Two, I think 

you need to enact into law Executive Order 12866 so that the agencies know that this has to be done. I think the agencies or OIRA 

need to have an ombudsman put in place either within the agencies or in OIRA so that you can take one of these data quality requests, which require enormous amount of effort, but when people 

put them forth they have pretty good information. This isn’t like 

a FOIA request where you say ‘‘give me what you’ve got.’’ This is a very hard process where you go through a lot scientific 

study, and I think if you want to make the process more cooperative, the Information Quality Act really does that because it gets 

the agency and the public—and I’m not talking about the U.S. 

Chamber. Environmental groups can file it. Public interest groups 

can file it. We don’t care. Let’s challenge the information in the 

public. We’re totally against—if these conversations, all the secret 

stuff between OIRA and the agencies is true and, well, you know, 

we don’t like that backdoor stuff either; we think it ought to be 

transparent. But we need to move forward. We need to establish 

an independent right to sue under the Data Quality Act so we can 

seriously challenge it. We’ll probably need to consider extending 

the Mandates Information Act to data quality and allow Members 

of Congress to actually put forth a point of order if the agency 

doesn’t comply with like Section 602 [610] where they actually review the regulations, because when you have 191,000 regulations, 

it’s hard to believe they’re all needed. 

So what we have to do if we’re going to really get a handle on 

the regulatory process is to begin looking at the 191,000 regulations and say, out of this group, how many are business practices? 

Well, that probably takes care of 100,000 by this time because a 

lot of them have been around. You might get down—we’ve been 

talking three or four hundred; you’re probably talking 50. But the 

50 that are out there that are wrong are a really significant cost 

to this country and to the business community and to our international competitiveness. And so we need to get the process right 

and there are mechanisms within it. 

And with that, I’m glad I had the chance to defend OIRA today 

and the agencies, but, anyway, thanks, and we’ll have a discussion. 

[Applause.] 

Mr. COPELAND. Any quick rebuttals from any other folks on the 

panel? Yes? 

Ms. KATZEN. I would like to make several points, which I will try 

to do very quickly. One, any call for total transparency that is 

based on the IQA—the Information Quality Act—is the height of 

hypocrisy since the Information Quality Act consists of three paragraphs—I will repeat—three paragraphs in a 700-page appropriations bill that was put in in the middle of the night without any 

1430

hearings, not 1 day of hearing, no discussion on either floor. It is 

a total nontransparent mandate. So I find that worth saying. 

The other thing is that $1.1 trillion as the cost of regulation is 

a figure that is so outrageous—it is concocted by extrapolating from 

extrapolating from extrapolating, and keeping the costs that were 

estimated before regulations ever even were suggested, ever in effect. Once they’re made in effect, American ingenuity goes to it and 

the costs come down appreciably. The economic regulations are 

based on percentages of GDP. There are any number of studies 

that show that this 1.1 trillion, which is used day in and day out 

as a rhetorical gesture, should be put on the shelf, and we ought 

to talk about what’s really there. The same with the 191,000 regulations. It’s made up. It’s not what people deal with. 

I would also say, with respect to David, that you surprised me 

in that you seem to be worrying about the costs of OIRA involvement, never reflecting on the potential benefits. And it ill behooves, 

I think, someone to look at only one side of the equation. 

[Laughter.] 

Ms. KATZEN. I’m drawing a laugh, which is what I wasn’t trying 

to do. But you have to look at the costs and the benefits. There 

may well be costs, although I don’t necessary agree with him on 

all of them. There are also enormous benefits beyond those that 

Neil mentioned. 

Mr. COPELAND. Okay, questions from the audience? (Cross talk.) 

I’m sorry, go ahead. 

Mr. KOVACS. Well, I’m glad Sally’s—(inaudible)—and I’m glad 

you dropped your theory that you said you used when you were at 

OIRA, that you—(inaudible)—or whatever. 

[Laughter.] 

Mr. KOVACS. Let me say several things just——

Ms. KATZEN. I’m not at OIRA now. 

Mr. KOVACS. One is that if you go back—and this was all in the 

court record—there were 5 years of appropriations committees 

going over requiring OIRA to develop guidelines on better information. They didn’t do it. And there were hearings on it; they may not 

have been in the—(inaudible)—but there were 5 years of committee 

reports. So that’s just one of those fallacies that, if you keep on saying it enough, you hope it will be true. 

The second thing is in the Crain and Hopkins study was put out 

by the Small Business Administration, and the last I checked, 

that’s another branch of Government. 

And finally, as to the 191,000 regulations, if you ever looked at 

the CFR, it’s about eight feet by 14—it would be about 16 feet by 

four feet tall, and that’s a lot of words, and they put out about 

4,000 regulations a year and they put 43,000 out in 10 years—so 

87,000 pages in the Federal Register. So maybe it’s not 191; maybe 

it’s 190, maybe it’s 193, but it’s up there. Beyond that, I don’t know 

how you count. 

Mr. COPELAND. Questions from the audience? 

I have a question. Bill Kovacs recommended perhaps taking Executive Order 12866 and putting it into statute. I think I know 

where David would fall on that continuum, as to whether it should 

or shouldn’t, but Sally and Neil, what do you two think about that? 

1431

Mr. EISNER. I don’t think it would be a good idea to put it in the 

statute. I think it’s an executive order that will need changes over 

the years, if for nothing else than to take the vice president out of 

the process and put the White House chief of staff into the process 

because of a particular administration. It’s too difficult to amend 

going through statute. As someone mentioned this morning, you 

don’t know what else might get added to it when you’re trying to 

make a simple little fix like that. 

Ms. KATZEN. I agree. 

Q: (Off mike.) I’d be worried about the constitutionality of Congress telling the President how the President had to supervise his 

Cabinet and sub-Cabinet appointees. There are many, many good 

reasons why codifying the executive order is a bad idea, but one 

issue that hasn’t been mentioned, I think, is the serious separation 

of powers problem that will come from that. 

Ms. KATZEN. Not surprisingly, both the Clinton administration 

and the Bush administration have opposed it. They come from very 

different places, but they both oppose codifying that executive 

order. 

Mr. COPELAND. Mort? 

MORT ROSENBERG. I assume by ‘‘codification’’ the panel and 

Copeland may be saying let’s take 12866 and make it a law. But 

why would you do that? There are other options. You could authorize the President to issue an executive order regarding the review 

of regulations, and put in there a bottom line, let’s say, of transparency that’s better than what’s here now—put that in the law 

and give the President general authority that he has assumed for 

the last 26 years. 

Mr. VLADECK. I’d like to see the signing statement were the 

President presented with that law. 

[Laughter.] 

Mr. VLADECK. I mean, that may be a better stratagem from Congress’ standpoint and one way around some of the obvious separation of powers problems that would come from simply trying to 

enact the executive order into law. But I think the President would 

still be very unhappy about the whole—how he ought to exercise 

the coordination function among the executive branch officers. 

Mr. COPELAND. There have also been proposals to expand OIRA’s 

review to include independent regulatory agencies, given that they 

constitute a significant portion of the regulatory costs—however 

large they are. I know, Sally, whenever you wrote Executive Order 

12866, you contemplated that, but then decided not to do that. 

Could the panelists talk a little bit about whether agencies like the 

FCC, SEC, and so forth should be covered by OIRA review? 

Ms. KATZEN. Federal Reserve——

Mr. COPELAND. Federal Reserve? 

Ms. KATZEN. Federal Election Commission. 

No, I think this is a prudential matter. When Boyden Gray was 

drafting 12291 for President Reagan, the same issue was raised. 

And as I said, the Department of Justice opined that the President 

had constitutional authority to extend to independent regulatory 

commissions. They chose not to do it. We reconsidered the question 

and chose not to do it. I think there is an aspect of an independent 

regulatory commission that says it should somehow be kept a little 

1432

distant from the validly political actors. And this was not in that 

direction, and I think it’s a sound one. It’s not one based on the 

law. I think we had the authority; I think it’s purely a question of 

desirability. 

Mr. COPELAND. Okay, anybody else? 

Bill? 

Mr. KOVACS. I think we ought to get it straight while we’ve got 

her. 

[Laughter.] 

Mr. COPELAND. Okay. 

Yes. 

Q: I have a question. 

Mr. COPELAND. Please identify yourself first. 

Q: I’m sorry. My name is Letesha Love. I’m from the U.S. Government Accountability Office. And one of the things that we’ve 

talked about is 12866, and 12866 has a requirement also for agencies to take a look back at their regulations. We’ve been focusing 

here today mainly on the upfront analysis that happens, which is 

where most of the focus really happens. But I just wanted to get 

your take on how important you think that aspect of review is. 

And also my second question is for Mr. Vladeck. And you mentioned that you don’t think a centralized process for overseeing 

agencies’ analyses or review is the way to go, and I’m wondering, 

do you have a recommendation for how to ensure that agencies are 

actually conducting rigorous analysis outside of the current process. 

Mr. VLADECK. If I may, let me start with your last question first. 

There is built in to the APA, the Administrative Procedure Act, 

enormous opportunity for public review of the agency’s decisional 

process. The agency is required to put on the public record all of 

the data, all of the information, all of its analytical work that it is 

relying on when it is issuing a rule. Industry and other Government agencies routinely participate in the rulemaking process. 

When OSHA issues a rule, you will see comments from other agencies, including the EPA, including at times other health and safety 

agencies, the Food and Drug Administration. 

So to the extent that the argument is you need OIRA review to 

simply enable an open and public process, that is not so. This is 

separate and apart from the longstanding APA process. So if all 

you want to do is encourage better analysis and better government, 

there are opportunities to do that without creating OIRA and without giving a lot of separate and special authority. 

The second point is this: I don’t disagree that—if I were president, which isn’t going to happen, but if I were president, I too 

would be very attracted to the idea of having some centralized control in the regulatory process. And I always thought the better of 

the Reagan executive orders is the one that’s essentially ignored, 

which is 12498, which is the coordination executive order that 

charges OIRA with the responsibility of making sure that the agencies are working from the same page and are working collaboratively. 

You still see many agencies addressing similar subject matters, 

but doing it quite independently of their sister agencies. I think 

that is a failing of OIRA. If I were organizing some form of centralVerDate 0ct 09 2002 11:30 Jan 03, 2007 Jkt 000000 PO 00000 Frm 01432 Fmt 6602 Sfmt 6602 G:\WORK\COMM\ADLAW\RPT1230 HJUD1 PsN: RPT1230
1433

ized review, I would do it that way. I am unalterably opposed to 

the idea that OIRA ought to standardize things like risk assessment and cost-benefit analysis. The kind of cost benefit work, the 

kind of risk assessment work that one agency does is not easily 

transferable to the next. 

OSHA deals mostly with epidemiological data, which is very different from the kind of data that the Food and Drug Administration looks at—very different from the kind of data that Neil has to 

analyze when he’s working on a rule. The idea that there should 

be a cookie cutter approach to something like risk assessment 

strikes me as indefensible, and yet if you create an organization 

like OIRA, the hydraulic pressure is to use that power as broadly 

as possible, which is why we’re seeing proposals out of OIRA to 

standardize all of these techniques government-wide without recognizing the unique responsibilities each agency has that vary tremendously depending on their statutory mandate. 

Mr. COPELAND. What about the other part of her question? Does 

anybody else have a comment on the issue of look backs? 

Ms. KATZEN. I do. 

Mr. COPELAND. Okay. 

Ms. KATZEN. Do you want to go first? 

Mr. EISNER. Three important points about doing reviews of existing regulations. First of all, most people do not understand that 

every day of the week a well-run industry is reviewing its rules. 

If there is an accident, the next morning at the highest levels people are talking about why their rules did not prevent that accident. 

Every day inspectors are out in the field talking to people who are 

affected by their rules. They’re seeing problems; they’re recommending changes. The list goes on about what agencies do every 

day, and that’s oftentimes lost on people who say you need to have 

some kind of a formal review process in order to fix your rules. 

Look in the Federal Register; most rules are not new rules; they 

are amendments to existing rules oftentimes resulting from agency 

decisions, but the rules are not working the way they were originally intended or they could be improved. 

Second point: Some agencies, like my Department of Transportation, do try to do regular reviews. Every 6 months in our agenda 

we have an Appendix D that is a 10-year rolling program for us 

to review our existing regulations. There is very, very little public 

interest in that, very little participation, despite the fact that we 

encourage it. 

The third and very key point I’d make is it’s very resource intensive to go back and review existing rules. Agencies—I know one in 

particular that had an office set up to do nothing but review existing rules, and little by little they had to pull people off those 

projects to work on other requirements that they had: statutory 

mandates, problems they identified through other processes. And 

when I’ve talked to other agencies about it, that’s one of the reoccurring things I hear: We want to do more; we don’t have the resources. 

Mr. COPELAND. Sally. 

Ms. KATZEN. Yes, I agree with everything that Neil said. All 

presidents in my lifetime have asked their agencies to go back and 

dig out rules that they don’t need anymore. They hear the rhetoric 

1434

about red tape and all these rules, and they say give me some I 

can get rid of. Every president tries it and the pickings are pretty 

lean. I mean, Neil said there’s not a lot of public participation in 

this. I went to the Chamber of Commerce, to a big meeting there, 

and said, ‘‘tell me the rules you most hate, or even the ones you 

slightly dislike. Give me some nominees. Let me take a look at 

them and see if we really need them on the books.’’ And I got very 

little. Now, maybe that’s because I was representing a Democratic 

president and they didn’t want to come forward in that light, but 

with President Bush, John Graham called for nominations for rules 

that could be reviewed and reconsidered and he didn’t get 100,000; 

he didn’t even get a thousand. He got in the tens and twenties of 

suggestions of rules that were filtered through back to the agencies. 

The other thing—I wrote down something here—remember, a lot 

of the rules on the books are things which have already now been 

incorporated in our lives. Neil, the two biggest regulations—well, 

not the biggest regs, but the two regs that I lived with, was in the 

seventies, the seatbelts in cars. That’s a regulation, to have seatbelts in cars. You want to review it? You want to spend time figuring out whether that makes sense? And let’s say we decide now 

we don’t need it because we have these airbags, which was the second one. You want to review that one? Let’s get rid of seatbelts. 

How many car manufacturers are going to applaud that? They’ve 

already changed their production line; they put the seatbelts in. It’s 

there. It’s embedded costs, but more importantly, they are now selling safety. How many times do you turn on your television and see 

cars running into brick walls and they say, ‘‘our car is safer because we’ve got roll over, we’ve got side airbags, front airbags, back 

airbags?’’ So these, quote, ‘‘onerous regs’’ and ‘‘preexisting regs’’ are in 

large part, I think, now part of our lives, and that whole effort, 

being as resource intensive as it is, should not be where the action 

is. 

Mr. COPELAND. Bill? 

Mr. KOVACS. I want to just remain consistent with Sally—(inaudible). There is a point for agreement. One of the things I suggested; when you look at the regulatory process, it isn’t as complicated as everybody thinks. There are these 191,000 or whatever 

number there are, but a lot of them have been incorporated. A lot 

of them are general business practices today, and if you pulled 

them out it would unwind the system. But there are hundreds, and 

when John Graham did seek nominations there were hundreds, 

and they were clumped in a group of areas, especially in a lot of 

the privacy areas and the medical areas, some of them in environmental areas. They were clumped. And if you ask me how you deal 

with regulatory process. I do think look back is important because 

the agencies do have this information and they do know where 

there’s a problem, and there is Section 602 [610] on the books, and 

they should be talking to Congress. 

And, Neil, DOT does an excellent job of complying with 602 

[610], but it’s one of the few agencies. All of the other agencies 

combined may do five rules that are private rules. So the look back 

is important. That’s really the first thing. 

1435

The second thing is when you analyze the regulatory process, 

break it into industry groups. Break it into the groups where, you 

know, it’s just an old antiquated thing. If it shouldn’t be in the 

books, get it off. Recognize that large groups of these rules are general business practices. Don’t worry about them, and then take 

those 100 or 200 rules and really have more of an analysis. And 

maybe when you get to the cost-benefit, rather than all the speculative work that people talk about when we project the cost-benefit 

analysis going forward, let’s take some of the rules—PM or a controversial rule—and let’s look at what did we project and what did 

it really cost, and let’s get real numbers as opposed to using phony 

numbers all the time. 

So I think there are a lot. If there were a lot of nominations then 

we can go back to the process they were giving out to the agencies 

and very few agencies did anything with them. They just sort of 

ignored them. Again, going back to the fact that OIRA lacks the 

kind of power to make agencies do them. 

Mr. COPELAND. We are almost on time—a little bit over. I’d like 

to thank this panel very much and then call Ray Smietanka up. So 

thanks first of all. [Applause.] 

While this panel leaves and Ray comes up here, let me tell you 

a little bit about Ray. He is the majority chief counsel of the Subcommittee on Commercial Administrative Law and the House Committee on the Judiciary, serving in that capacity since 1995. 

Ray and his colleague, Susan Jensen, who he was sitting next to 

there, are the folks that have been sort of the guiding force behind 

a lot of the stuff that Mort and T.J. and I have been doing over 

the last couple of years, trying to organize symposiums like this 

one, helping with the organizing of hearings, research like Jody 

Freeman’s and Bill West’s on the early stages of the rulemaking 

process. It was Ray and it was Susan that were really the starting 

point of that. And so I’d like to ask Ray to just end up our session 

today, just to talk a little bit about it from his perspective. 

Thanks. 

RAY SMIETANKA. Thank you very much, Curtis, and I want to 

thank you again and Mort Rosenberg and Dan Mulhollan, who 

helped sponsor this thing, and really have done the lion’s share of 

the work on the Administrative Law Project, which I’m sure you’ve 

probably heard about. Everybody in the room here has probably 

contributed in some way. And I look around and I look at the program, and I see names and faces of people who have testified in 

front of our Subcommittee. Just about everybody out there has 

probably testified in front of our Subcommittee over the last 20 

years, and it’s good to see you all again. 

I’m here actually again to speak on behalf of Chairman Sensenbrenner and Chairman Cannon, who obviously can’t be here today 

because the House isn’t in session, and he won’t be here until tomorrow night. But they appreciate your efforts, and this is all 

going to be a part of the report on the Administrative Law Project, 

which hopefully will be coming out sometime later this month and 

transcripts of the—this is the third seminar that Morton and Curtis put on. I forgot to mention T.J. too. T.J.—pardon me—T.J. 

Halstead, who has been also very instrumental in the project. 

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And in any event, all the issues that have been brought up are 

going to be extremely useful in the future and will form the bulk 

of the report, but also I think it lays the bases again and I’m sure 

you remember if you were at the second seminar I made a pitch 

on the reappropriation of money for the Administrative Conference 

of the United States, which would be one of the best things that 

the Congress could do to improve the administrative law function. 

I think Sally and David had talked about ‘‘is what it costs important, or is it what you’ll get for your money that’s important?’’ And 

I think the desirability of ACUS is in general agreement here, and 

certainly is in our Subcommittee. Mr. Cannon has become devoted 

to this idea that we can save money—vast amounts of money—by 

reappropriating and putting together ACUS as a functioning body 

to consider all these issues related to administrative law, the efficiency of agencies, the development of an efficient and working judicial review system, administrative review system for regulations, 

and the implementation of those regulations. 

So again thank you very much. I appreciate it. I’m sorry I wasn’t 

here for more of it. Some issues came up today that—I’m beginning 

to feel like Rocky Balboa in maybe Rocky IV. I can’t remember. 

[Laughter.] 

Mr. SMIETANKA. Am I about to fight Apollo Creed or is it going 

to be Mr. T or the big tall Russian guy? I’m not sure. And I have 

to go back and do some more of that, too, so I would much rather 

have spent the entire day listening to the issues here. I enjoyed the 

seminar we had at American University several months ago and if 

this last panel was any indication of what was done earlier, it was 

fascinating. Some of the issues that were talked about we’ve considered in our subcommittee for years. And I think David had testified on regulatory impact analysis years ago and maybe a few other 

issues, too, and Sally had been a witness many times on various 

things. 

Anyway, thank you very much. I appreciate it and this has been, 

I think, a very useful and enlightening program for everyone. 

Thank you very much again. [Applause.] 

Mr. COPELAND. I appreciate everyone’s attendance here today. 

Thanks again. 

[Applause.]

Æ