Regulatory Improvement Act of 2007

Madam Speaker, I move to suspend the rules and pass the bill (H.R. 3564) to amend title 5, United States Code, to authorize appropriations for the Administrative Conference of the United States through fiscal year 2011, and for other purposes.

Madam Speaker, I ask unanimous consent that all Members have 5 legislative days to revise and extend their remarks and include extraneous material on the bill under consideration.

Madam Speaker, I yield myself such time as I may consume.

Madam Speaker, the Federal regulation process is among the most important ways by which our Nation implements public policy. Each year, agencies issue thousands of regulations to ensure that the food we eat, the air we breathe, and the cars we drive are safe. Surprisingly, however, there is little empirical analysis of whether these regulations work as intended.

Until 1995, the last year it received federal funding, the Administrative Conference of the United States was a nonpartisan, public-private think tank that provided invaluable guidance to Congress about how to improve the administrative and regulatory process. First established on a temporary basis, the conference, over the course of its nearly 30-year existence, made numerous recommendations, many of which were enacted into law. H.R. 3564, the Regulatory Improvement Act of 2007, would simply reauthorize the conference for an additional 4 years.

Madam Speaker, some might ask why we should reauthorize an entity that has not been in existence for nearly a dozen years. Let me just mention three reasons. First, the conference saved taxpayers many millions of dollars. It helped agencies implement cost-saving procedures and made recommendations that work to eliminate excessive litigation costs and long delays. Just one agency alone, the Social Security Administration, estimated that the conference's recommendation to change its appeals process yielded approximately $85 million in savings.

Indeed, Justice Stephen Breyer testified before the Subcommittee on Commercial and Administrative Law about the ``huge'' savings to the public resulting from the conference's recommendations. Justice Antonin Scalia likewise agreed that it was an ``enormous bargain.''

Second, the Administrative Conference promoted innovation among agencies. For example, it convinced 24 agencies to use alternative dispute resolution for issues concerning the private sector. The conference also spearheaded the implementation of the Negotiated Rulemaking Act, the Equal Access to Justice Act, and the Magnusson-Moss Warranty Act, governing consumer product warranties.

Madam Speaker, the conference played a major role in encouraging agencies to promulgate smarter regulations. It did this by improving participation in the rulemaking process, promoting judicial review of agency regulations, and reducing regulatory burdens on the private sector.

Third, and perhaps more importantly, Congress needs the conference. Experience with the Congressional Review Act demonstrates that we simply lack the resources and, sometimes, the political will to conduct aggressive oversight of regulations. Congressional recognition of the conference's significant contributions to the regulatory process is probably best evidenced by the fact that in nearly every Congress since its demise in 1995, legislation has been introduced assigning responsibilities to the conference. The Congressional Research Service advises that reactivation of the conference comes at an opportune time, especially in light of efforts by the executive branch to augment its role in the regulatory process.

Madam Speaker, there are few entities that enjoyed more bipartisan support than the Administrative Conference. I commend my colleague, the ranking member of the Subcommittee on Commercial and Administrative Law, Mr. Cannon of Utah, for his continued leadership in pursuing the reauthorization of the conference. I urge my colleagues to support H.R. 3564.

Madam Speaker, I would like to insert into the Record two letters from Supreme Court Justices Breyer and Scalia written in 1995 that describe the importance of the Administrative Conference of the United States.

Supreme Court of the

United States,

Washington, DC, August 21, 1995.

Hon. Charles E. Grassley,

Chairman, Subcommittee on Administrative Oversight, and the

Courts, U.S. Senate Committee on the Judiciary,

Washington, DC.

Dear Senator Grassley, thank you for the invitation to

submit a few comments about the Administrative Conference of

the United States. As a ``liaison'' to the Administrative

Conference (from the Judicial Conference), I have

participated in its activities from 1981 to 1994. I believe

that the Conference is a unique organization, carrying out

work that is important and beneficial to the average

American, at rather low cost.

The Conference primarily examines government agency

procedures and practices, searching for ways to help agencies

function more fairly and more efficiently. It normally

focuses 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

to likely provoke a general debate, say, in Congress. Thus,

it may 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 may make it easier for citizens to understand

what government agencies are doing to prevent arbitrary

government actions that may harm them.

The Administrative Conference is unique in that it develops

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

will 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 will spend time with agency staff, which often

has otherwise unavailable facts and experience, but may lack

the time for general reflection and comparisons with other

agencies. The professor's draft will 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 is 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 has 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 would be a pity

to weaken or to lose. our federal government's ability to

respond effectively, in this general way, to the problems

of its citizens.

I do not see any other institution 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 can 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 this is to explain why I believe the Administrative

Conference performs a necessary function, which, in light of

the cost, is worth maintaining. I recognize that the

Conference is not the most well known of government agencies;

indeed, it is widely known only within a fairly small

(administrative practice oriented) community. But, that, in

my view, simply reflects the fact that it does 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 the Administrative

Conference well suited to do it.

I hope these views will help you in your evaluation of the

Conference.

Yours sincerely,

Stephen Breyer.

Madam Speaker, I yield myself such time as I may consume.

Madam Speaker, regulations play a critical role in virtually every aspect of our daily lives, yet there is no independent, nonpartisan entity that Congress can utilize to scrutinize and approve the regulatory process. Accordingly, it is critical that we reauthorize the Administrative Conference of the United States as soon as possible so that it can fill this serious void.

I realize that this may not be the sexiest issue on the docket today, but I urge my colleagues to support this bill.

Madam Speaker, I yield back the balance of my time.

Mr. Speaker, I rise today in strong support of H.R. 3564, Regulatory Improvement Act of 2007. The administrative conference was first created inside the Department of Justice by President Kennedy. Later, it was moved out of the Department of Justice by President Johnson. The mission was a private partnership to discuss administrative law and regulatory system and how to make it better. Supreme Court Justices Breyer and Scalia served on the Conference before becoming Justices and both have testified in the past for its re-authorization. This bill reauthorizes the Administrative Conference. I support this bill and I encourage my colleagues to do likewise.

The Administrative Conference of the United States (ACUS), an independent agency and advisory committee created in 1968, studied U.S. administrative processes with an eye to recommending improvements to Congress and agencies. From 1968 to 1995, the ACUS issued approximately 200 recommendations, most of which have been at least partially implemented. Congressional funding for ACUS was terminated in 1995.

ACUS's recommendations were published periodically in the Code of Federal Regulations prior to 1995. Little known ``outside the Beltway,'' ACUS was a unique entity. Comprised of between 75 and 101 individuals drawn from agencies, academia, and the private sector, the Conference was classified as both an independent agency and a federal advisory committee. Organizationally, it consisted of a Chair, a Council, and an Assembly. The Chair, appointed by the President and confirmed by the Senate for a five-year term, was responsible for the day-to-day activities and supervision of the 18 permanent staff. The Council, which functioned like a board of directors, consisted of ten members appointed by the President for three-year terms, five of whom were always current senior federal officials. The Assembly was made up of the Chair, the Council, and the other members of the Conference, a majority of whom had to come from government service. All of the members (other than the Chair) served without compensation.

The primary, although not exclusive, function of the Conference was to study administrative processes with an eye to recommending improvements to Congress and the agencies. It performed this function by commissioning studies by law professors expert in the administrative process that then were reviewed by one of six standing committees: adjudication, administration, governmental processes, judicial review, regulation, and rulemaking. The recommendations developed by committees of the Conference would be considered for adoption by the Assembly in plenary sessions, which were typically held twice a year.

The improvements occasioned by the Conferences recommendations are legion. Inasmuch as the Conference never had the power to impose its recommendations on unwilling subjects, the fact that so many of its recommendations bore fruit is a testimony to their intrinsic sense. Some, like the Conference's recommendation in 1968, its first year of operation, to eliminate a jurisdictional amount in suits under the APA, were followed by Congress in passing new legislation. Another example is its recommendation to provide administrative penalty authority to agencies to increase the effectiveness of agency enforcement activities at lower cost, first proposed by the Conference in 1972 and since adopted by Congress in over 200 statutes. A third is its 1980 recommended solution to unseemly races to the courthouse in rulemaking appeals, adopted by Congress in 1988.

Other recommendations, like the Conference's early recommendation to eliminate the exemption from the APA's notice-and-comment requirements for rules relating to public property, loans, grants, benefits, and contracts, were sufficiently influential to lead agencies to adopt the recommendations on their own. Its recommendation in 1988 on Presidential Transition Workers' Code of Ethical Conduct were used by President Bush as the basis for his transition standards of conduct, and the Clinton administration likewise followed what had become standard procedures. From 1968 to 1995, the Conference issued approximately 200 recommendations, most of which have been at least partially implemented.

Probably the area in which the Conference had its greatest influence was in introducing and supporting the use of alternative dispute resolution techniques in agency practice. Its recommendation in 1982 provided procedures by which agencies could negotiate proposed regulations, and it followed the recommendation with support and encouragement to agencies to experiment with this new technique. Ultimately, Congress adopted the Negotiated Rulemaking Act in 1990, virtually copying the procedures contained in the Conference's original recommendation. Similarly, in 1986 the Conference issued the first of some fifteen recommendations on using alternative means of dispute resolution in agency adjudications. In 1990 Congress again followed the Conference's lead and enacted the Administrative Dispute Resolution Act. Recognizing the Conference's leadership role in this area, that Act gave the Conference the principal role for coordinating and promoting ADR in the federal government.

Another area in which the Conference had a major influence involved its study of Presidential review of agency rulemaking undertaken during the Reagan administration. This was a subject that had the potential to become highly partisan, but the Conference's reputation for neutrality and expertise enabled it to review the practice, generally validate its exercise, and makes certain recommendations to improve its openness and public acceptability. Because of the Conference's track record of useful and expert studies of the administrative process, all the regulatory reform bills considered by the Senate in the last session included provisions for the Conference to study the effects of the legislation.

The Conference's contribution to administrative law and procedure was not limited just to studies. Drawing on its expertise, ACUS issued numerous publications designed to assist agencies in their administrative processes. For example, in 1972 the Conference published the first edition of its Manual for Administrative Law Judges (now in its 3d edition); in 1978 it published its Interpretive Guide to the Government in the Sunshine Act; in 1981 it issued Model Rules for Agency Implementation of the Equal Access to Justice Act. The latter two of these documents were responsive to Congress' requirement for agencies to consult with the Conference in implementing these statutes. In addition, the Conference has published sourcebooks on Federal Administrative Procedure, Negotiated Rulemaking, and Alternative Dispute Resolution, as well as the Guide to Federal Agency Rulemaking.

Finally, in recent years, following the collapse of the Soviet Union, Congress authorized the Conference to lend its expertise to newly emerging democracies in their creation of administrative law and procedures. As a result, the Conference sponsored seminars in the Ukraine, Hungary, the People's Republic of China, and South Africa.

The ABA has long been a strong supporter of the Conference, and over the years the Conference and the Section on Administrative Law and Regulatory Practice have enjoyed a close and mutually supportive relationship. This bill reauthorizes the administrative conference.

I support this Act and encourage my colleagues to support it also.

Mr. Speaker, I move to suspend the rules and concur in the Senate amendment to the bill (H.R. 3564) to amend title 5, United States Code, to authorize appropriations for the Administrative Conference of the United States through fiscal year 2011, and for other purposes.

Mr. Speaker, I ask unanimous consent that all Members have 5 legislative days to revise and extend their remarks and include extraneous material on the bill under consideration.

I yield myself such time as I may consume.

Mr. Speaker, the Federal regulation process is one of the most important ways by which our Nation implements public policy. Each year, agencies issue thousands of regulations to promote safety in our lives, from the food we eat, to the cars we drive, to the air we breathe.

Although regulations play a critical role in protecting so many aspects of our daily lives, there is no independent, nonpartisan entity that Congress can rely upon to help us ensure that these regulations are working as intended.

The Administrative Conference of the United States was just such an entity, a public-private think tank that provided invaluable guidance to Congress about how to improve the administrative and regulatory process.

First authorized by President John F. Kennedy, the Conference made numerous recommendations over the course of its 27-year existence, many of which were enacted into law. The conference was last funded into in 1995. H.R. 3564, the Regulatory Improvement Act of 2007, would reauthorize it for 3 years.

Some might ask why we are reauthorizing an entity that has been out of existence for so long. Let me mention three important reasons. First, the Conference can save taxpayer dollars, in fact, millions of dollars. When it was in existence, it helped agencies implement many cost-saving procedures and make 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 appeal process yielded approximately $85 million in savings. Indeed, Justice Stephen Breyer testified before the Subcommittee on Commercial and Administrative Law about the ``huge'' savings to the public resulting from the Conference's recommendations. Justice Antonin Scalia likewise agreed that it was an enormous bargain.

Second, the Administrative Conference promoted innovation among agencies. For example, it convinced 24 agencies to use alternative dispute resolution for issues concerning the private sector. The Conference also spearheaded implementation of the Negotiated Rulemaking Act, the Equal Access to Justice Act, and the Magnuson-Moss Warranty Act, governing consumer product warranties.

The Conference played a major role in encouraging agencies to promulgate smarter regulations. It did this by working to improve the public's understanding and participation in the rulemaking process, promoting judicial review of agency regulations, and reducing regulatory burdens on the private sector.

Third, and perhaps most importantly, Congress needs the conference. Experience with the Congressional Review Act proves that there are limitations in Congress' ability to provide aggressive oversight of the regulatory process.

Congressional recognition of the Conference's significant contributions to the regulatory process is probably best evidenced by the fact that legislation assigning responsibilities to it continues to be introduced in nearly every Congress, including the current one.

The Congressional Research Service advises that reactivation of the Conference now would come at ``an opportune time,'' especially in light of efforts by the White House to augment its involvement in the regulatory process.

There are few entities that have enjoyed more bipartisan support than the Administrative Conference, and understandably so. It is all about promoting good government.

I commend my colleague, the ranking member of the Subcommittee on Commercial and Administrative Law, Chris Cannon of Utah, for his leadership in continuing to pursue reauthorization of the conference.

Last October, the House passed this bill on suspension by voice vote without amendment. The Senate late last month finally acted and passed the bill with a small amendment which essentially reauthorizes the Conference at a level of funding in the amount of $3.2 million.

I urge my colleagues to concur in the Senate amendment so we can send this bill to the President.

I reserve the balance of my time.

Mr. Speaker, may I inquire how many more speakers my colleague from Texas has remaining.

Mr. Speaker, I thank the gentleman from Texas and I thank the Speaker as well as the work of Mr. Cannon of Utah. I urge passage of the bill.

As we have seen most recently in the actions and inactions by the FDA dealing with the salmonella incidents, or whether it is the Consumer Product Safety Commission and some of the issues involving manufactured products from other countries, the regulatory process is extraordinarily important in protecting the American people. Congress is doing its best to oversee these agencies, but we can use the assistance of this important conference, and I join my colleague in urging passage of this bill.

I yield back the balance of my time.

Madam Speaker, I yield myself such time as I may consume.

Madam Speaker, I rise in strong support of H.R. 3564. I would like to, first of all, thank the gentlewoman from California for her leadership on this issue. I appreciate working with her.

I am delighted that H.R. 3564, which would reauthorize the Administrative Conference of the United States, is being considered on the floor today. I urge support of this measure. I also urge the Appropriations Committee to appropriate funds to ACUS so that this organization can once again become a living, breathing reality.

Madam Speaker, I am a believer in the adage that the government that governs best governs least; but when the government does govern, it must govern as its best. ACUS is just the organization to help us achieve that goal. Before its funding ceased some years ago, it laid down a decades-long track record of productive activity that was remarkable, unmistakable, and probably unparalleled.

Over the course of its 28-year existence, the conference issued more than 200 recommendations, some of which were governmentwide and others that were agency specific. 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 of 1990, which established a framework for the use of Alternative Dispute Resolution. 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.

Madam Speaker, time and again, ACUS took the small amount of taxpayer funds that we appropriated and produced enormous savings in the costs incurred and imposed by Federal regulatory agencies. That record is so clear that I can say with absolute confidence that, if we were not to authorize ACUS, we would effectively authorize waste in the rest of the Federal Government. I can say with equal confidence that if the Appropriations Committee were not to appropriate funds to ACUS after the Congress passes this bill, it would effectively appropriate waste by the Federal Government to the tune of millions upon millions of dollars.

Many of you may know my enthusiasm for ACUS, and it will not surprise you that hordes of experts, officials and stakeholders outside of these walls, share that same enthusiasm as well, including Justices Scalia and Breyer, both of whom worked with ACUS in an earlier part of their careers.

To quote just one legal luminary, ``If the conference didn't exist, it would have to be invented.'' Thankfully, we don't need to invent it. We did that long ago. We know it was a great invention. All we need to do is to reauthorize it today and to appropriate funds for it.

Madam Speaker, I yield back the balance of my time.

Mr. Speaker, I yield myself such time as I may consume.

I thank my friend from California for his work on this bill, and thank the chairman of the committee and also the ranking members of the subcommittee and committee.

I am delighted to see us conclude today our consideration of H.R. 3564 which would reauthorize the Administrative Conference of the United States. The bill we consider today was amended slightly by the Senate which required this action by us today. But I strongly urge the House to concur in the Senate's amendment today. I also urge the Appropriations Committee and the House to appropriate funds promptly to ACUS. We need this exemplary agency once again to become a living, breathing entity and reality.

So why is that? As the distinguished Member from Utah (Mr. Cannon) remarked when we originally voted out the bill, and quoting from prior adage,

``The government that governs best, governs least. And when the government does govern, it should govern at its best.'' He is exactly right. That is the role of ACUS, to ensure that when the government acts, it acts at its best.

The small appropriations that we historically invested in ACUS yielded us major overall savings in time and in money. ACUS consistently pinpointed ways for the government to reduce the cost it incurs and that it imposes. As we confront the specter of exploding Social Security and Medicare entitlement costs hijacking the Federal budget, we need ACUS all the more. We must do everything we can to avoid waste in our spending and to lighten the government burden on our economy. By reauthorizing and refunding ACUS, we can take important steps in that effort. I again thank the gentleman from California for his work.

I reserve the balance of my time.

I have no further speakers, and I yield back the balance of my time.