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REGULATORY IMPROVEMENT ACT OF 2007 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

COMMERCIAL AND ADMINISTRATIVE LAW 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

ON

H.R. 3564 

SEPTEMBER 19, 2007 

Serial No. 110–157 

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 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

BETTY SUTTON, Ohio 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

PERRY APELBAUM, Staff Director and Chief Counsel 

JOSEPH GIBSON, Minority Chief Counsel 

SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW

LINDA T. SA ́ NCHEZ, California, Chairwoman 

JOHN CONYERS, JR., Michigan 

HANK JOHNSON, Georgia 

ZOE LOFGREN, California 

WILLIAM D. DELAHUNT, Massachusetts 

MELVIN L. WATT, North Carolina 

STEVE COHEN, Tennessee 

CHRIS CANNON, Utah 

JIM JORDAN, Ohio 

RIC KELLER, Florida 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

MICHONE JOHNSON, Chief Counsel 

DANIEL FLORES, Minority Counsel 

(III) 

C O N T E N T S 

SEPTEMBER 19, 2007 

Page 

THE BILL 

H.R. 3564, the ‘‘Regulatory Improvement Act of 2007’’ ........................................ 2 

OPENING STATEMENTS 

The Honorable Linda T. Sa ́nchez, a Representative in Congress from the 

State of California, and Chairwoman, Subcommittee on Commercial and 

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

The Honorable Chris Cannon, a Representative in Congress from the State 

of Utah, and Ranking Member, Subcommittee on Commercial and Administrative Law ........................................................................................................... 4 

WITNESSES 

Mort Rosenberg, Esq., Specialist in American Public Law, Congressional Research Service (CRS), Washington, DC 

Oral Testimony ..................................................................................................... 7 

Prepared Statement ............................................................................................. 9 

Jody Freeman, Esq., Professor, Harvard Law School, Cambridge, MA 

Oral Testimony ..................................................................................................... 17 

Prepared Statement ............................................................................................. 19 

Dr. Curtis W. Copeland, Ph.D., Specialist in American National Government, 

Congressional Research Service (CRS), Washington, DC 

Oral Testimony ..................................................................................................... 33 

Prepared Statement ............................................................................................. 35 

Jeffrey S. Lubbers, Esq., Professor, Washington College of Law, American 

University, Washington, DC 

Oral Testimony ..................................................................................................... 49 

Prepared Statement ............................................................................................. 51 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable Chris Cannon, a Representative in 

Congress from the State of Utah, and Ranking Member, Subcommittee 

on Commercial and Administrative Law ........................................................... 5 

Letter from Justice Stephen Breyer, Supreme Court of the United States, 

submitted by the Honorable Linda T. Sa ́nchez, a Representative in Congress from the State of California, and Chairwoman, Subcommittee on 

Commercial and Administrative Law ................................................................. 78 

Letter from Justice Antonin Scalia, Supreme Court of the United States, 

submitted by the Honorable Linda T. Sa ́nchez, a Representative in Congress from the State of California, and Chairwoman, Subcommittee on 

Commercial and Administrative Law ................................................................. 82 

Letter from the American Bar Association (ABA), submitted by the Honorable 

Linda T. Sa ́nchez, a Representative in Congress from the State of California, and Chairwoman, Subcommittee on Commercial and Administrative 

Law ........................................................................................................................ 84 

Page

IV 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

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

in Congress from the State of Michigan, Chairman, Committee on the 

Judiciary, and Member, Subcommittee on Commercial and Administrative 

Law ........................................................................................................................ 93 

Response to Post-Hearing Questions from Mort Rosenberg, Esq., Specialist 

in American Public Law, Congressional Research Service (CRS), Washington, DC ............................................................................................................. 94 

Response to Post-Hearing Questions from Jody Freeman, Esq., Professor, 

Harvard Law School, Cambridge, MA ................................................................ 96 

Response to Post-Hearing Questions from Curtis Copeland, Ph.D., Specialist 

in American National Government, Congressional Research Service (CRS), 

Washington, DC ................................................................................................... 105 

Response to Post-Hearing Questions from Jeffrey S. Lubbers, Esq., Professor, 

Washington College of Law, American University, Washington, DC .............. 120 

(1) 

REGULATORY IMPROVEMENT ACT OF 2007 

WEDNESDAY, SEPTEMBER 19, 2007 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON COMMERCIAL

AND ADMINISTRATIVE LAW, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 3:04 p.m., in room 

2141, Rayburn House Office Building, the Honorable Linda 

Sa ́nchez (Chairwoman of the Subcommittee) presiding. 

Present: Representatives Conyers, Sa ́nchez, Johnson, Lofgren, 

Delahunt, Cannon, Jordan, Keller, and Franks. 

Staff present: Susan Jensen, Majority Counsel; Daniel Flores, 

Minority Counsel; Adam Russell, Majority Professional Staff Member. 

Ms. SA ́ NCHEZ. This hearing of the Committee on the Judiciary, 

Subcommittee on Commercial and Administrative Law, will now 

come to order. And I will recognize myself for a short opening 

statement. 

Today’s hearing provides an opportunity for us to officially begin 

one important project, as well as to formally bring to a close a related project. Today we begin the process of reauthorizing and securing funding for the Administrative Conference of the United 

States. To that end, I especially commend my colleague, the Ranking Member, Mr. Cannon, for his leadership in introducing H.R. 

3564, the ‘‘Regulatory Improvement Act of 2007,’’ and for his deep 

and abiding commitment to revitalizing the conference. 

[The bill, H.R. 3564, follows:] 

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Ms. SA ́ NCHEZ. Today we will also consider the final installment 

of a 2-year study known as the Administrative Law Process and 

Procedure Project for the 21st Century, which was sponsored on a 

bipartisan basis by the Judiciary Committee. Let me first explain 

the project. 

Through the guidance of the Congressional Research Service, 

particularly Mort Rosenberg, Curtis Copeland and T.J. Halstead, 

the Committee undertook a comprehensive analysis of the state of 

administrative law in our Nation. Over the course of this project, 

this Subcommittee held six hearings, participated in three 

symposia, and sponsored three empirical studies. 

Last December, an interim report in excess of 1,400 pages was 

issued, detailing various findings along with recommendations for 

legislative reform and suggested areas for further research and 

analysis. In particular, this report addressed: the agency adjudicatory process; public participation in the rulemaking process; the 

role of science in the regulatory process; the utility of regulatory 

analysis and accountability requirements; and congressional, presidential and judicial review of agency rulemaking. 

One of the project’s most enduring legacies, however, will undoubtedly be how it underscored the absolute and urgent need to 

have a permanent, neutral, non-partisan think tank that can dispassionately examine administrative law and process and that can 

make credible recommendations for reform, namely the Administrative Conference of the United States. 

Although reauthorized in the 108th Congress with overwhelming 

bipartisan support, the conference has not been funded since, and 

its current reauthorization expires next week. In addition to supporting the reauthorization of ACUS, I hope my colleagues on this 

Subcommittee will also join me in the next step, obtaining funding 

for the conference once and for all. 

As I am sure the witnesses at today’s hearing will explain in 

great detail, an extremely nominal investment to fund ACUS will 

unquestionably redound in billions of savings in taxpayer dollars. 

Accordingly, I look very much forward to today’s hearing and to receiving the testimony from all our witnesses. 

I would now like to recognize my colleague, Mr. Cannon, the distinguished Ranking Member of the Subcommittee, for any opening 

remarks he may have. 

Mr. CANNON. Thank you, Madam Chair. I think the panel is 

quite familiar with my views on the issue. And so, with your permission, I would like to submit my statement for the record and 

want to just reiterate the one thing you said. You said many things 

that I agree with, but getting this thing funded is actually really 

the next big important step, as well as the reauthorization for 

which we are here today. So thank you for the hearing. And if you 

will accept my statement for the record, I will submit it. 

Ms. SA ́ NCHEZ. Without objection, so ordered. 

[The prepared statement of Mr. Cannon follows:] 

5 

PREPARED STATEMENT OF THE HONORABLE CHRIS CANNON, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF UTAH, AND RANKING MEMBER, SUBCOMMITTEE ON

COMMERCIAL AND ADMINISTRATIVE LAW

I would like to extend a warm welcome to the witnesses today, and I thank the 

Chair for scheduling this hearing. I hope that our work today leads promptly toward 

an authorized and appropriated Administrative Conference of the United States. 

ACUS was established in the 1960s to foster uniformity, effectiveness and fairness 

in federal administrative procedure. It was a small but productive agency that fulfilled its mission well. 

It served innovatively as a ‘‘private-public think tank,’’ conducting basic research 

on how to improve the regulatory and legal process.’’ 

It facilitated the interchange among administrative agencies of information useful 

in improving administrative procedure. 

It collected information and statistics from administrative agencies and published 

reports evaluating and discussing procedural improvements. 

It served as a resource for Members of Congress and congressional committees. 

The initial jurisdiction was intentionally broad, and ACUS was the key implementing agency for the Administrative Dispute Resolution Act, the Negotiated Rulemaking Act, the Equal Access to Justice Act, the Congressional Accountability Act, 

and the Magnusson-Moss Warranty-Federal Trade Commission Improvement Act. 

ACUS developed and promoted procedures implementing the Negotiated Rulemaking Act, which encourages consensual resolutions accounting for the needs of affected interests. 

It recommended a model administrative civil penalty statute that has served as 

the basis for dozens of pieces of legislation. 

It facilitated judicial review of agency decisions and the elimination of technical 

impediments to such review. 

It helped to focus attention on the need for the federal government to be more 

efficient, smaller and more accountable. 

It actively promoted information-technology initiatives, such as developing methods by which the public could participate electronically in agency rulemaking proceedings. 

The list goes on and on. 

I cannot imagine what kind of regulatory structure we would confront had it not 

been for ACUS’ contributions. 

I know that, whatever that structure might have been, it would certainly have 

been much more expensive and more cumbersome. 

As Richard Wiley, former Chairman, Commissioner and General Counsel of the 

Federal Communications Commission, once explained: 

‘‘ACUS, along with the Office of Federal Procurement Policy, convinced successfully some 24 agencies to initiate [Alternative Dispute Resolution] and to try to use 

it in disputes with private sector companies and government contracts. Given the 

fact that you have $200 billion going into the Government procurement program 

every year, the potential savings in that one program are simply enormous.’’ 

To take just one specific agency, the Social Security Administration estimated 

that the Conference’s recommendation to change that agency’s appeals process generated approximately $85 million in savings. 

Those figures, of course, were all in yesteryear’s dollars. 

What was the cost to the taxpayer? The last appropriation for ACUS was merely 

$1.8 million per year. 

Against this background, it is easy to understand the observation of former White 

House Counsel C. Boyden Gray that ‘‘as long as there is a need for regulatory reform, there is a need for something like the Administrative Conference.’’ 

Numerous other authorities, experts and luminaries have also weighed in on behalf of ACUS, including Supreme Court Justices Scalia and Breyer and prominent 

members of academia. One law school dean perhaps put it best, urging that: ‘‘if the 

Conference didn’t exist, it would have to be invented.’’ 

It also is easy to understand, and to laud, the bipartisan support that exists for 

the Conference’s reauthorization and re-funding. 

As I said at the outset, I hope that this hearing is the start of finally bringing 

ACUS back. It can only help us to reinvigorate the centuries-old effort to help the 

government govern best by governing least, and to do so by identifying and helping 

to deploy the 21st Century methods that can help us do that in ways we never could 

before. 

I yield back the remainder of my time. 

6 

Ms. SA ́ NCHEZ. And I just want to thank our witnesses for being 

patient. I know we started this hearing somewhat late due to the 

vote schedule on the floor. We are expecting votes in approximately 

40 minutes, so we are going to try to get through as much of the 

testimony as possible. 

With that, I am pleased to introduce the witnesses for today’s 

hearing. Our first witness is Mort Rosenberg, a specialist in American public law in the American Law Division at CRS. For more 

than 25 years, Mr. Rosenberg has been associated with CRS. Prior 

to his service with that office, he was chief counsel to the House 

Select Committee on Professional Sports. And he has held a variety 

of other public service positions. In addition to these endeavors, 

Mr. Rosenberg has written extensively on the subject of administrative law. 

Our second witness is Professor Jody Freeman. Professor Freeman teaches administrative law, environmental law, and natural 

resources law and is the director of the Harvard Law School Environmental Law Program. Her work in administrative law focuses 

on public-private collaboration and governance, regulatory innovation, negotiated approaches to regulation, and privatization. Prior 

to joining Harvard Law School, Professor Freeman taught for 10 

years at my alma mater, the UCLA School of Law, where in 2004 

she received the law school’s Rutter Award for Excellence in Teaching, and in 2001, was voted professor of the year. 

Our third witness is Dr. Curtis Copeland, a specialist in American national government at CRS. Dr. Copeland’s expertise, appropriately relevant for today’s hearing, is Federal rulemaking and 

regulatory policy. Dr. Copeland has previously testified before this 

Subcommittee, and he is one of three CRS experts who are assisting the Subcommittee in the conduct of its administrative law 

project. 

His contributions to the project are deeply appreciated. Prior to 

joining CRS, Dr. Copeland held a variety of positions at the Government Accountability Office over a 23-year period. 

And our final witness is Professor Jeffrey Lubbers. 

Did I pronounce that correctly? 

Professor Lubbers, if I am smirking, it is because today is National Talk Like a Pirate Day. And landlubber is what comes to 

mind when I hear your name. I apologize. 

Professor Lubbers is a fellow in law and government. He holds 

expertise in administrative law, government structure, and procedures, regulatory policy and procedures. 

From 1982 to 1995, Professor Lubbers was the research director 

of the Administrative Conference of the United States. He has published two books, ‘‘A Guide to Federal Agency Rulemaking’’ and 

‘‘Federal Administrative Procedures Source Book.’’ 

He is also the editor of the American Bar Association’s (ABA) Developments in Administrative Law and Regulatory Practice. In addition to teaching, Professor Lubbers is also an administrative law 

consultant whose clients include numerous Federal agencies, law 

firms, public interest groups, and international organizations, including the OECD and World Bank. 

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ments will be placed into the record. And we will ask that the witnesses please limit their oral remarks to 5 minutes. Your written 

testimony in its entirety will be placed into the record. 

For those of you not familiar with the lighting system, when you 

begin your testimony, the light will appear as green. When you 

have 1 minute remaining, it will warn you by changing to yellow. 

And then when your time expires, it will turn red. 

If the light should turn red and you are in the middle of a 

thought, we will allow you to finish off that thought before proceeding to the next person’s testimony. After each person has presented his or her testimony, Subcommittee Members will be permitted to ask questions subject to the 5-minute limit. 

At this time, I would invite Mr. Rosenberg to proceed with his 

testimony. 

TESTIMONY OF MORT ROSENBERG, ESQ., SPECIALIST IN 

AMERICAN PUBLIC LAW, CONGRESSIONAL RESEARCH SERVICE (CRS), WASHINGTON, DC 

Mr. ROSENBERG. Thank you very much, Madam Chairman, Mr. 

Cannon. Good to be here again and with you. And I am honored 

to be here to talk about the reauthorization and funding of the administrative conference. 

This last 3 years has been very rewarding, even though it was 

arduous. And the commitment that the Committee has had to this 

has been wonderful. 

I thought that I might concentrate my remarks with respect to 

two empirical studies that CRS commissioned. And I thought it 

would be useful to devote the time to that because of in describing 

the difficulties encountered by CRS in these studies, it underlines 

and underscores the need for a reactivated ACUS. 

ACUS’ past accomplishments in providing nonpartisan, nonbiased, comprehensive, and practical assessments with respect to a 

wide range of agency processes, procedures and practices are very 

well documented. During the hearings considering ACUS’ reauthorization in 2004, C. Boyden Gray, a former White House counsel 

during the George G.W. Bush administration, testified before your 

Subcommittee in support of reauthorizing ACUS, stating that, 

‘‘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. 

Further evidence of the widespread respect of and support for 

ACUS continued. Work was presented by Supreme Court Justices 

Scalia and Breyer, both of whom worked at ACUS prior to their judicial careers. 

Justice Scalia stated that ACUS was an approved and effective 

means of opening up the process to Government to needed improvement. And Justice Breyer characterized ACUS as a unique organization carrying out work that is important and beneficial to the average American at low cost. Examples of the accomplishments for 

which ACUS has been credited range from simple and practical 

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yses of complex issues of administrative process and the spurring 

of legislative reform in those areas. 

I would here note that ACUS’ established credibility and nonpartisan reputation opened doors at Federal agencies and allowed 

access to ACUS-sponsored research, to internal operational information that normally would not have been available otherwise. 

Justice Scalia remarked, ‘‘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 own assembly. 

And so, the agency would cooperate in the study that we did. I 

think it is much harder to do that kind of a study from the outside. 

The agencies tended to look upon us as essentially people from the 

executive branch trying to make things better.’’ 

Justice Breyer concurred, commenting that, ‘‘the American Bar 

Association’s administrative law section’s attempts to do studies of 

agencies,’’ commenting on that. What the conference could do that 

the Ad Law section couldn’t do is just what Scalia is talking about. 

They could get 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 underlined that point. I was chairman of the ad 

law section for a year. And there is a big difference between showing up at an agency and saying ‘‘I am from the American Bar Association, I want to know this, that, and the other,’’ and coming from 

the administrative conference, which has a statute that says agencies shall cooperate and provide information. It makes all the difference in the world. 

The CRS experience with its two sponsored empirical studies was 

disappointing for the very reasons alluded to by the justices. Professor William West testified before this Subcommittee of the reluctance of most agencies to provide him with information vital to his 

study on public participation at the development stage of an agency 

rulemaking proceeding. 

His requests for information were often met with reluctance and 

suspicion. And his most valuable contacts with knowledgeable officials were on deep background. With this potential obstacle in 

mind, when CRS considered a comprehensive study of science advisory panels in Federal agencies to determine, among other things, 

how many there were, are, how were members selected, how issues 

of neutrality and conflict of interest are handled and the impact of 

advisory body recommendations on agency decision making, we 

provided the research group at Syracuse University’s Maxwell 

School of Public Administration with letters of introduction from 

the director of CRS and you, Chairman Cannon, as well as the 

Ranking minority Member of the Subcommittee, to try to assure 

agency officials of their bona fide and neutral academic purposes. 

Ms. SA ́ NCHEZ. Mr. Rosenberg, I apologize. But your time has expired. The time goes quickly. 

Mr. ROSENBERG. I would just conclude that—— 

Ms. SA ́ NCHEZ. If you would like to conclude. 

9 

Mr. ROSENBERG [continuing]. We tried very hard to get entree for 

these people, and we couldn’t do it. It is the imprimatur and the 

reputation of ACUS that works and that has reestablished these 

kind of empirical studies will work. 

[The prepared statement of Mr. Rosenberg follows:] 

PREPARED STATEMENT OF MORTON ROSENBERG


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Ms. SA ́ NCHEZ. Thank you. I appreciate your testimony. 

At this time I would invite Professor Freeman to begin her testimony. 

TESTIMONY OF JODY FREEMAN, ESQ., PROFESSOR, 

HARVARD LAW SCHOOL, CAMBRIDGE, MA 

Ms. FREEMAN. Madam Chair and Members of the Subcommittee, 

thank you for the invitation to testify today. Let me just applaud 

your efforts and your leadership, both Chair Sa ́nchez and Ranking 

Member Cannon. This is an area of inquiry and study that is not 

the most exciting for everyone. I understand that as an administrative law professor. But the truth is nothing is more important than 

ensuring that our Government agency policies are fair, effective 

and efficient. 

Today, very briefly in my short time, I will describe the results 

of a study that I conducted in cooperation with, or at the behest 

of, CRS that is quite a comprehensive study of the judicial review 

of agency rules across all of the circuits over an 11-year period. 

More broadly, I will make two points. 

The first is the desperate need—and I am not overstating—the 

desperate need for research and study of the administrative process 

to help Congress engage in meaningful reform. And the second 

point, the benefit to be gained by funding an independent agency 

like the administrative conference, which can produce, sponsor and 

organize that kind of research. 

Just very briefly to make the case, the need for empirical data 

is striking. There are many misconceptions about the administrative process that could lead Congress down the wrong path to reform and could lead to a vast waste of taxpayer dollars. 

Agencies promulgate thousands of rules each year. The rules 

have, as you well know, the force and effect of law. They have a 

dramatic impact on our economy and society. And yet our empirical 

knowledge of how well agencies do this is very thin. 

We do not know, for example, how effective agencies’ rules are. 

In fact, the people who study the administrative process don’t yet 

agree on what a measure of effectiveness would be. 

We don’t know how much time agencies spend on average promulgating rules. We don’t know if cost benefit analysis and other 

analytic mechanisms used by the president or by Congress work 

and achieve the results they purportedly are designed to achieve. 

We have a lot of mechanisms, both in terms of executive orders and 

statutes that require ante-analysis of rulemaking, but very few 

post-analyses of how well these things work. 

There are many myths about the administrative process that 

lasts for years. My favorite is one that circulated and was cited in 

congressional testimony that 80 percent of EPA rules are challenged. It was made up. 

Imagine if Congress had gone and tried to reform administrative 

process at the EPA with a totally fabricated statistic like that. This 

is what keeps me awake at night. 

Again, a few more. Among other things we don’t know well are 

rules implemented. Do they achieve their goals? Are agencies doing 

better in their use of science? What would better mean? Are agencies doing things with data collection that could be copied, absorbed 

18 

by other agencies if we could just generalize across them and figure 

out what best practices are? 

Let me turn briefly to our study. The goal of the study was to— 

and this is a study I conducted with my coauthor, Joe Doherty, of 

your alma mater, Chair Sa ́nchez, UCLA School of Law. He can’t be 

here, but he is an empirical expert and certainly available to answer questions later. 

The goal was to study the rate at which rules are invalidated in 

whole or part, the reasons why, whether there is bias on the panels 

of judges that review these rules, and whether there is anything 

else about, any patterns we could detect, in terms of who files these 

lawsuits and who tends to win. And we have submitted for the 

record a much more detailed description. 

And I am sure you are relieved to know I won’t take you through 

the tables. I don’t have time. Our data show that the clear majority, 58 percent, of challenged rules are upheld in their entirety. 

And nearly 80 percent are upheld in whole or part, only 11 percent 

invalidated in their entirety. This is again all rules across all circuits for an 11-year period, the most comprehensive study we are 

aware of. 

The results are generally consistent over time across all the 

agencies and unaffected by the composition of the judicial panels 

reviewing the rules. And I can go into any detail you wish if you 

are interested in questions. But the implication of this is simply 

that we don’t think the rulemaking process is in crisis. 

Agencies are not seeing their rules invalidated at alarming rates, 

nor are there disturbing patterns in terms of alleged bias of partisan judicial panels. Nor are we seeing skewed results in terms of 

the likelihood of success of you are a corporate versus an environmental versus a Government plan. 

We are contesting past studies. That is, some scholars have suggested that one or another agency was having great difficulty defending its rules. One study said EPA rules are entirely or mostly 

upheld only 33 percent of the time. That is not what our data says. 

Our study challenges that picture is inaccurate. And this leads 

me to my statement in support of ACUS. There remains a significant percentage of rules that are invalidated in whole or part, 

which suggests we need additional study about why, why do rules 

fail, and what reasons do judges invalidate them, why do judges invalidate them. 

This leads me to the need for ACUS. I am to stop also. 

Ms. SA ́ NCHEZ. You can finish your thought. 

Ms. FREEMAN. I have three things to say about ACUS. It is a 

bargain, especially at the funding levels being considered by this 

Subcommittee. 

For the last 12 years, we have missed it desperately. I could give 

you examples of what ACUS could have done, but wasn’t allowed 

to do. And third, there is no substitute, whether within the Government, OMB, GAO or universities for what ACUS can accomplish. 

Thank you. 

[The prepared statement of Ms. Freeman follows:] 

19 

PREPARED STATEMENT OF JODY FREEMAN


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Ms. SA ́ NCHEZ. Thank you so much for your testimony, Professor 

Freeman. 

I would now invite Dr. Copeland to proceed with his testimony. 

TESTIMONY OF CURTIS W. COPELAND, PH.D., SPECIALIST IN 

AMERICAN NATIONAL GOVERNMENT, CONGRESSIONAL RESEARCH SERVICE (CRS), WASHINGTON, DC 

Mr. COPELAND. Thank you, Madam Chairman, Members of the 

Subcommittee. I am pleased to be here today to discuss recent rulemaking and administrative law issues that the Administrative 

Conference, or ACUS, might have been able to address as well as 

issues that it might address in the future. 

Although it is ultimately impossible to know what effect ACUS 

would have had on these issues, it is not far fetched to say that 

ACUS would have made a difference in our understanding and 

ability to deal with them. 

One such issue occurred within the last month. On August 17th, 

the Centers for Medicare and Medicaid Services sent a letter to 

State health agencies requiring them to use specific procedures to 

ensure that the States’ Children’s Health Insurance Program, or 

SCHIP, does not substitute for coverage under group health plans. 

Although CMS said it was just providing guidance to the States, 

some observers considered this letter a rule that should have been 

submitted to Congress under the Congressional Review Act. Therefore, they said, the letter’s requirements could not take effect. 

Had ACUS been available, it could have provided professional, 

objective, non-partisan advice to both Congress and CMS about 

whether the letter’s requirements had crossed the line into rulemaking and, therefore, avoided at least this part of the SCHIP controversy. More generally, during the last decade ACUS might have 

published studies, convened panels and possibly issued authoritative guidance to all Federal agencies regarding this aspect of the 

rulemaking process. 

ACUS could have also been a player regarding an issue that 

came before this Subcommittee this year, Executive Order 13422, 

and its changes to the presidential regulatory review process. One 

of the most controversial elements of this executive order required 

agencies to designate presidential appointees as regulatory policy 

officers who appear to have been given enhanced authority to stop 

agency rulemaking. 

However, little was known about these policy officers’ identities 

or their responsibilities. Even OMB did not know whether the new 

RPO designees were different than the ones serving prior to the executive order. Had ACUS been around during the last 12 years, it 

could have conducted studies indicating how many of the policy officers were already presidential appointees and determine whether 

the new designees represented a significant change. That information may not have diffused the controversy, but it might well have 

led to a more informed discussion. 

Another possible issue for ACUS is electronic rulemaking, which 

supporters say has the potential to increase the democratic legitimacy, improve regulatory policy decisions and decrease administrative costs. However, the Bush administration’s effort to create a 

centralized electronic docket for all Federal agencies has generated 

34 

strong congressional concern about its funding and management, 

and concerns from others about the functionality of the docket’s application. ACUS could have provided Congress and the Administration advice on all these issues, bringing together leading experts to 

ensure compliance with applicable legal requirements and that the 

new docket system is cost-efficient, effective and user friendly. 

Civil penalties is another issue that ACUS could have examined 

more recently. In 1996, the year after ACUS was eliminated, Congress enacted legislation requiring agencies to examine their civil 

penalties for at least once every 4 years, and if necessary, adjust 

them for inflation. However, as GAO reported 3 years ago, certain 

provisions in the legislation actually prevent agencies from adjusting their civil penalties for inflation. 

As a result of this lack of action, the deterrent value of civil penalties have declined sharply over the years. Had ACUS been available, it might have been able to call attention to these problems 

while the legislation was being considered in Congress or could 

have identified the problems during implementation more rapidly. 

My written statement identifies several additional broad areas that 

ACUS could have addressed, including public participation in rulemaking, science in rulemaking, the effectiveness of analytic requirements placed on the agency rulemaking agencies, privacy protection, information access, presidential directives. The list goes on. 

Also ACUS could have helped in the development of what Neal 

Kerwin from the American University called the professionalization 

of rulemaking, ultimately leading to a defined career path. Although many organizations within and outside of Government have 

studied these kinds of issues, ACUS appears to have been unique 

in its ability to serve as a nonpartisan, deliberative forum and as 

a long-term source of unbiased, objective information on a range of 

topics. 

Madam Chairman, that concludes my prepared statement. I 

would be happy to answer any questions. 

[The prepared statement of Mr. Copeland follows:] 

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PREPARED STATEMENT OF CURTIS W. COPELAND


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Ms. SA ́ NCHEZ. Thank you, Dr. Copeland. And I noticed you came 

in under the 5-minute mark. I appreciate that. 

At this time I would invite Professor Lubbers to begin his testimony. 

TESTIMONY OF JEFFREY S. LUBBERS, ESQ., PROFESSOR, 

WASHINGTON COLLEGE OF LAW, AMERICAN UNIVERSITY, 

WASHINGTON, DC 

Mr. LUBBERS. Thank you very much, Madam Chair and Ranking 

Member Cannon, Members of the Committee. I am very pleased to 

be here today to discuss with you the continuing need to reauthorize the Administrative Conference of the United States, ACUS. 

I first want to applaud the Committee’s leadership in this bipartisan effort that led to the successful effort 3 years ago to enact the 

Federal Regulatory Improvement Act of 2004, which reauthorized 

ACUS until the end of this current fiscal year. Unfortunately, no 

appropriations were made available to reconstitute ACUS in the 

past 3 years, so another reauthorization is necessary. 

Due to the work of this Committee in fostering studies and forums on the importance of the administrative process, I believe 

that at this time the foundation has been laid for a successful appropriations effort. So I strongly support a new 2007 version of the 

Regulatory Improvement Act, H.R. 3564. And I also want to salute 

the excellent statements and all of the work of my fellow panelists 

who have been so instrumental in providing assistance to the Committee in this effort. 

As you mentioned, I spent 20 years of my professional career 

working at ACUS from 1975 until it lost its funding in 1995. I truly 

believe it was one of the Federal Government’s most cost-effective 

institutions. And it has been sorely missed. 

I have written three short articles supporting the revival of 

ACUS, which I am appending to this testimony. In my years at 

ACUS I saw just how cost-effective it was. We had a small staff 

and a small budget, but a large membership of agency representatives and private sector experts who donated their time in order to 

see consensus on some of the most vexing administrative procedure 

problems of the day, problems that the rest of the Government did 

not have the time to think about in such an ordered way. 

Our small budget was leveraged into savings many times over for 

the Government due to streamlined procedures, efficiencies in government-wide operations, and the sharing of information among 

agencies about procedural problems. Perhaps more important, the 

members were drawn from a wide variety of backgrounds and interest groups. 

It was heartening to see interest group lawyers who are normally 

strong opponents in the world of litigation, lobbying and politics 

come together in a spirit of cooperation to seek consensus on process. I firmly believe that the connections forged in the ACUS meetings helped increase civil discourse and reduce the level of partisanship in legal Washington, as the testimony of Justices Scalia 

and Breyer demonstrated, also the support for reviving ACUS by 

both the American Bar Association and the Center for Regulatory 

Effectiveness. 

50 

Mr. Copeland, just 2 weeks ago I had a reminder of how ACUS 

is missed. I was asked to provide testimony to a small, independent 

agency that was created in 2003, the U.S. Election Assistance Commission. 

This agency was delegated the important function to issue standards and provide grants to the States for improvements in election 

processes around the country. Of course, as a Federal agency, it is 

covered by numerous cross-cutting procedural statutes such as the 

APA, Freedom of Information Act, Privacy Act, Sunshine Act, Paperwork Reduction Act and Government Performance and Results 

Act, just to name a few, many of which require agencies to take 

affirmative steps to publish procedural regulations and guidelines. 

The commissioners were seeking advice on what they had to do 

under these laws. And when I spoke to them, several of them said 

publicly that they wished there was an ACUS today that could advise them. Several of the commissioners told me privately that they 

had received no orientation about these laws when they were appointed, and now they realized they really need some. 

This is just the kind of advice and training that ACUS was able 

to do for new agencies like EAC. I also believe that a large inventory of administrative procedure issues has built up since ACUS 

shut its doors in 1995. And I gave kind of a laundry list 2 years 

ago when I appeared before this Committee, and I won’t repeat 

them today. 

I also believe that the authorization of appropriations, the dollar 

amounts included in the bill, are appropriate. They are about the 

same in today’s dollars as ACUS’ highest appropriation of $2.3 million in 1992. And to put this amount in perspective, I would note 

that far greater amounts are often authorized by Congress for individual studies of the administrative process. 

I was personally involved in a congressionally mandated study 

just published today of one aspect of the Social Security Program. 

And the study cost $8.5 million. 

And I can’t resist also pointing out the story in last Saturday’s 

Washington Post about a report of the Department of Justice’s inspector general, which found that DOJ spent $6.9 million in the 

last 2 years just to host and send employees to 10 conferences, with 

a total amount of $81 million for all conferences only in those 2 

years. So I think the administrative conference is quite a bargain 

in light of these figures. 

So in summary, I would suggest that for all of these reasons, as 

elaborated in my attached articles and earlier testimony, I would 

strongly support the reauthorization and the reappropriation of 

this highly effective and cost-saving agency. 

Thank you, Madam Chair, Mr. Cannon. And I would be happy 

to try to answer any questions you might have. 

[The prepared statement of Mr. Lubbers follows:] 

51 

PREPARED STATEMENT OF JEFFREY S. LUBBERS


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Ms. SA ́ NCHEZ. Thank you, Professor Lubbers. We will now begin 

our round of questionings. And I will begin by recognizing myself 

first for 5 minutes. 

Mr. Rosenberg, if ACUS were reconstituted, what, if anything, 

would you recommend be changed about the conference? 

Mr. ROSENBERG. I think there should be a broadening of the people that make up the assembly so that there is more representation 

from States and localities, more representation from management 

and public administration types, and perhaps more in employment 

law and personnel kinds of people to reflect those areas that are 

now coming to the fore, and perhaps the kinds of issues that are 

raised by the reorganization of DHS, and some of the civil liberties 

kinds of issues that are coming up now. 

Ms. SA ́ NCHEZ. And how important would it be to preserve the bipartisan and nonpolitical nature of ACUS, especially given the topics that you have just given? 

Mr. ROSENBERG. Absolutely essential, and also to lend to the 

credibility of opening doors for—just by the fact that ACUS is neutral and does open those doors to get the information that they 

need. 

Ms. SA ́ NCHEZ. Professor Freeman, I am going to give you an opportunity, as the time ran out, so that you could talk about what 

ACUS could have done but wasn’t allowed to do. I am going to give 

you that opportunity now, during questions. 

Ms. FREEMAN. Thank you. I suppose that a highlight for me is 

the creation of DHS in the wake of September 11th. And this, of 

course, was the most important, massive creation of a Government 

bureaucracy in over 50 years. And not to have had some bipartisan 

and neutral advice for Congress and for others, the agencies themselves, to make that transition work smoothly, to try to harmonize 

the national security concerns of those agencies with the need for 

accountability, public access. That would have been a great service 

ACUS could have provided. That is just one in a long list. 

The other I would mention is that outsourcing has grown over 

the last couple of decades, but particularly in the last several 

years, there is need for a significant amount of study and attention 

to the implications of outsourcing. There was a New York Times 

blitz on outsourcing over the last year or 2. And you have seen this 

really come to the fore in the wake of Hurricane Katrina, as well 

as Iraq. Those two issues to me are things that ACUS could have 

helped out. 

Ms. SA ́ NCHEZ. Thank you. I appreciate your answers. 

I have more time remaining, but I am going to yield it back. We 

have been called across the street to vote. My understanding is 

there is one vote. So we will run across to do that and come back 

and resume questioning, unless the Ranking Member would like to 

maybe ask a quick question. 

Mr. CANNON. Madam Chair, I only have one question that I can 

just ask for the record. 

Ms. SA ́ NCHEZ. I will yield. I will yield my time to you, my remaining time to you, Mr. Cannon. 

Mr. CANNON. Thank you. And then hopefully we can just let the 

panel go. 

77 

I appreciate you being here. We have been in this business together for a long time. 

And just a few, Dr. Freeman. And this is not urgent. But in your 

study, you have got EPA being reversed about 54 percent of the 

time. That seems to be way disproportionate to the other agencies 

involved. You have also got, I guess, the FCC as being reversed 43 

percent and then others, I think, are averaging about 28. 

I actually was wondering why EPA, primarily, and then FCC are 

so far statistically out of line with the others. But again, that is 

not urgent. If you want to just give us something in writing. 

Ms. FREEMAN. I am happy to address it in writing. But just very, 

very briefly, actually, I don’t think those numbers—I wouldn’t necessarily agree exactly with that read of the numbers. It turns out 

that EPA is upheld in whole or part actually 74 percent of the 

time. But you are right that they have a lower rate of being upheld 

in their entirety. They are the lowest at 46 percent. 

But just to make one comment about this, we did some more 

analysis. And I don’t think it is correct at the moment to assume 

that this means there is something wrong with how EPA writes its 

rules. It turns out that most of the cases, 66 percent of the cases, 

in which EPA’s rules are invalidated in whole or part, 66 percent, 

are Clean Air Act cases. And Clean Air Act implementation is extremely complicated, very likely to be subject to litigation. 

It may point to the need for Congress to revisit some of the most 

difficult issues in the Clean Air Act. It may not be the fault of EPA. 

Mr. CANNON. All right. Thank you. 

I yield back, Madam Chair, to you. 

Ms. SA ́ NCHEZ. Thank you. I am going to ask unanimous consent 

to enter into the record letters that we have received by Justice 

Breyer and Justice Scalia and also the American Bar Association 

to be made part of the record. Without objection, so ordered. Those 

will be made part of the record. 

[The information referred to follows:] 

78 

LETTER FROM JUSTICE STEPHEN BREYER, SUPREME COURT OF THE UNITED STATES, 

SUBMITTED BY THE HONORABLE LINDA T. SA ́ NCHEZ, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA, AND CHAIRWOMAN, SUBCOMMITTEE ON

COMMERCIAL AND ADMINISTRATIVE LAW


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LETTER FROM JUSTICE ANTONIN SCALIA, SUPREME COURT OF THE UNITED STATES, 

SUBMITTED BY THE HONORABLE LINDA T. SA ́ NCHEZ, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA, AND CHAIRWOMAN, SUBCOMMITTEE ON

COMMERCIAL AND ADMINISTRATIVE LAW


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LETTER FROM THE AMERICAN BAR ASSOCIATION (ABA), SUBMITTED BY THE HONORABLE LINDA T. SA ́ NCHEZ, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF

CALIFORNIA, AND CHAIRWOMAN, SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW


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Ms. SA ́ NCHEZ. My understanding is that there are no further 

questions of the witnesses. So I would like to thank the witnesses 

for their testimony today. Without objection, Members of the Subcommittee will have 5 legislative days to submit any additional 

written questions, which we will forward to the witnesses and ask 

that you answer as promptly as you can so that they can be made 

a part of the record. And without objection, the record will remain 

open for 5 legislative days for the submission of any other additional materials. 

I realize this has been a bit of a quick and dirty hearing, but we 

do appreciate your attendance and your testimony. You will be receiving, as I said, probably additional questions to be answered in 

writing. I thank you for your patience and for your time. And with 

that, the hearing on the Subcommittee of Commercial and Administrative Law is adjourned. 

[Whereupon, at 3:40 p.m., the Subcommittee was adjourned.] 

(93) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN, CHAIRMAN, COMMITTEE ON THE JUDICIARY, AND MEMBER, SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW

Today’s hearing allows us to consider H.R. 3564, the ‘‘Regulatory Improvement 

Act of 2007,’’ a measure that would simply reauthorize the Administrative Conference of the United States for an additional 4 years. 

There are few entities that enjoyed more bipartisan support than the Administrative Conference. It is also one of the few subject matters that both Justices Breyer 

and Scalia wholeheartedly agree upon, as evidenced by their enthusiastic testimony 

in support of the Conference before this Subcommittee in the 108th Congress. 

Let me just mention a few reasons why there has been and continues to be such 

broad bipartisan support for the Administrative Conference. 

First, the Conference helped agencies implement procedures that, in turn, saved 

taxpayers many millions of dollars. It proposed numerous recommendations to 

eliminate excessive litigation costs and long delays. Just one agency alone—the Social Security Administration—estimated that the Conference’s recommendation to 

change that agency’s appeals process would result in approximately $85 million in 

savings. 

Indeed, Justice Breyer described the ‘‘huge’’ savings to the public resulting from 

the Conference’s recommendations, while Justice Scalia concurred that it was ‘‘an 

enormous bargain.’’ 

Second, the Administrative Conference promoted innovation among agencies and 

how they function. To that end, the Conference successfully convinced 24 agencies 

to use Alternative Dispute Resolution to resolve issues with the private sector. It 

also spearheaded the implementation of the Negotiated Rulemaking Act, the Equal 

Access to Justice Act, and the Magnuson-Moss Warranty Act, governing consumer 

product warranties. 

Third, the Conference played a major role in helping agencies promulgate ‘‘smarter’’ regulations. It did this by working to improve the public’s understanding of and 

participation in the rulemaking process, promoting judicial review of agency regulations, and reducing regulatory burdens on the private sector. 

After we proceed to markup of the legislation reauthorizing the Administrative 

Conference later this afternoon, I will recommend to House leadership that this 

measure be considered on the floor promptly in the coming weeks. I also intend to 

urge our colleagues on the Appropriations Committee to fund the Conference as 

soon as possible. 

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RESPONSE TO POST-HEARING QUESTIONS FROM MORT ROSENBERG, ESQ., SPECIALIST

IN AMERICAN PUBLIC LAW, CONGRESSIONAL RESEARCH SERVICE (CRS), WASHINGTON, DC 


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RESPONSE TO POST-HEARING QUESTIONS FROM JODY FREEMAN, PROFESSOR, 

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RESPONSE TO POST-HEARING QUESTIONS FROM CURTIS COPELAND, PH.D., SPECIALIST

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RESPONSE TO POST-HEARING QUESTIONS FROM JEFFREY S. LUBBERS, PROFESSOR, 

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