Administrative Law, Process and Procedure Project

The Administrative Law, Process and Procedure Project (the Project) is a bipartisan undertaking of the Committee on the Judiciary of the House of Representatives of the United States Congress. It consists of a comprehensive study of the state of administrative law, process and procedure in the United States. A description of the Project was included in the Judiciary Committee's Oversight Plan for the 109th Congress, as approved by the Committee on January 26, 2005. [ [http://judiciary.house.gov/media/pdfs/printers/109th/109th%20Oversight%20Plan.pdf "Oversight Plan for the 109th Congress, Committee on the Judiciary"] at 5, (January 26, 2005).] 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 (ACUS). House Judiciary Committee Chairman F. James Sensenbrenner, Jr. (R-WI) and Ranking Member John Conyers (D-MI) requested the Congressional Research Service (CRS) to assist Representative Chris Cannon (R-UT), the Chairman of the Subcommittee on Commercial and Administrative Law (CAL), in conducting the Project, which is anticipated to be completed by September 2006.

Relationship between the project and ACUS

One of the principal goals of the Project is to further substantiate the need to reactivate the Administrative Conference of the United States (ACUS), a nonpartisan "private-public think tank" ["Reauthorization of the Administrative Conference of the United States Before the Subcomm. on Commercial and Administrative Law of the House Comm. on the Judiciary", 104th Cong. 31 (1995) (Statement of C. Boyden Gray).] that proposed 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 administrative agencies in carrying out administrative programs." [5 U.S.C. Section 594(1). ] Most of its approximately 200 recommendations were implemented, [ [http://www.law.fsu.edu/library/admin/acus/acustoc.html American Bar Ass'n Administrative Procedure Database Site Specific Digital Texts: Recommendations of the Administrative Conference of the United States] ;"see" Toni Fine, "A Legislative Analysis of the Demise of the Administrative Conference of the United States", 30 ARIZONA ST. L. J. 19, 46 n. 102 (1998) (noting that "it has been estimated that 75% of ACUS' legislative proposals were adopted in whole or in part).] and they, in turn, helped save taxpayers many millions of dollars. ACUS was considered to be "an invaluable mechanism set into place by Congress to improve federal administrative law." ["ABA Section of Administrative Law & Regulatory Practice Program: The Administrative Conference of the U.S. - Where Do We Go From Here?", 8 THOMAS M. COOLEY L. REV. 147, 148 (1991) (quoting Michael P. Cox, Dean and Professor of Law, Thomas M. Cooley Law School).] A commentator observed that " [a] s long as there is a need for regulatory reform, there is a need for something like the Administrative Conference." ["Reauthorization of the Administrative Conference of the United States: Hearing Before the Subcommittee on Commercial and Administrative Law of the House Committee on the Judiciary", 104th Cong. 31 (1995) (statement of C. Boyden Gray).] ACUS is credited with playing an important role in improving the nation's legal system by issuing recommendations designed "to eliminate excessive litigation costs and long delays." ["Id." at 44 (statement of Richard E. Wiley).] For example, Congress, in response to an ACUS recommendation, passed the Administrative Dispute Resolution Act in 1990, which established a framework for agencies to resolve administrative litigation through alternative dispute resolution. [Pub. L. No. 101-552, 104 Stat. 2736 (1990).] Among its "most influential government-wide recommendations" were ACUS's proposals facilitating judicial review of agency decisions and eliminating various technical impediments to such review. [Gary J. Edles, "Lessons from the Administrative Conference of the United States", 2 EUROPEAN PUB. L. 571, 584 (1996).] It also issued proposals leading to the enactment of the Negotiated Rulemaking Act, [5 U.S.C. Sections 561-70.] which encourages consensual resolution through a process that takes into account the needs of various affected interests. ["See" Gary J. Edles, "Lessons from the Administrative Conference of the United States", 2 EUROPEAN PUB.L. 584, 590-591 (1996).] ACUS, in addition, recommended a model administrative civil penalty statute that has served as the basis for "dozens of pieced of legislation." ["Id." at 588.]

From a systemic perspective, ACUS also helped to focus attention on the need for the federal government to be made more efficient, less big, and more accountable. It was viewed as one of the leading federal proponents of encouraging practical ways to reduce administrative litigation. In this regard, ACUS actively promoted information-technology initiatives, such as developing methods by which the public could participate electronically in agency rulemaking proceedings to increase public access to government information and foster greater openness in government operations. ["See, e.g.", 305.69-3 Publication of a "Guide to Federal Reporting Requirements" (Recommendation No. 69-3); 305.69-6 Compilation of Statistics on Administrative Proceedings by Federal Departments and Agencies (Recommendation No. 69-6); 305.71-6 Public Participation in Administrative Hearings (Recommendation No. 71-6); 305.74-4 Preenforcement Judicial Review of Rules of General Applicability (Recommendation No. 74-4); 305.76-2 Strengthening the Informational and Notice-Giving Functions of the "Federal Register" (Recommendation No. 76-2); 305.76-3 Procedures in Addition to Notice and the Opportunity for Comment in Informal Rulemaking (Recommendation No. 76-3); 305.78-4 Federal agency interaction with private standard-setting organizations in health and safety regulation (Recommendation No. 78-4); 305.79-4 Public Disclosure Concerning the use of Cost-Benefit and Similar Analyses in Regulation (Recommendation No. 79-4); 305.80-6 Intragovernmental Communications in Informal Rulemaking Proceedings (Recommendation No. 80-6); 305.82-4 Procedures for Negotiating Proposed Regulations (Recommendation No. 82-4); 305.82-7 Judicial Review of Rules in Enforcement Proceedings (Recommendation No. 82-7); 305.84-5 Preemption of State Regulation by Federal Agencies (Recommendation No. 84-5); 305.85-1 Legislative Preclusion of cost/benefit analysis (Recommendation No. 85-1); 305.85-2 Agency procedures for performing regulatory analysis of rules (Recommendation No. 85-2); 305.88-7 Valuation of Human Life in Regulatory Decisionmaking (Recommendation No. 88-7); 305.90-2 The Ombudsman in Federal Agencies (Recommendation No. 90-2); 305.93-4 Improving the Environment for Agency Rulemaking (Recommendation No. 93-4); 305.94-1 Use of Audited Self-Regulation as a Regulatory Technique (Recommendation No. 94-1); 305.95-4 Procedures for Noncontroversial and Expedited Rulemaking (Recommendation 95-4).]

During the course of his testimony on the reauthorization of ACUS in 2004, U.S. Supreme Court Justice Antonin Scalia, a former ACUS Chair, described ACUS as “a worthwhile organization” that offered “a unique combination of talents from the academic world, from within the executive branch . . . and, thirdly, from the private bar, especially lawyers particularly familiar with administrative law.” ["Reauthorization of the Administrative Conference of the United States Before the Subcommittee on Commercial and Administrative Law of the House Committee on the Judiciary", 108th Cong. 15-16 (2004).] He observed, “I did not know another organization that so effectively combined the best talent from each of those areas.” In addition, he said that the Conference was “an enormous bargain.” ["Id." at 36.] Likewise, U.S. Supreme Court Justice Stephen Breyer cited the “huge” savings to the public as a result of ACUS’s recommendations. ["Id." at 38.] Noting that ACUS was “a matter of good Government,” he stated, “I very much hope you reauthorize the Administrative Conference.” ["Id." at 22-23.] Both Justices agreed that there were various matters that a reauthorized ACUS could examine. These included assessing the value of having agencies use teleconferencing facilities and the need to create a regulatory process that promotes sound science. ["Id." at 46.] Through Representative Cannon's leadership, ACUS was reauthorized in the 108th Congress. [Federal Regulatory Improvement Act of 2004, Pub.L.No. 108-401 (2004).]

Current status of the project

Hearings

To date, the CAL Subcommittee has held a series of hearings in anticipation of and as part of the Project. Following its May 20, 2004 oversight hearing on the reauthorization of the ACUS at which Justices Antonin Scalia and Stephen Breyer testified, ["Reauthorization of the Administrative Conference of the United States: Hearing Before the Subcommittee on Commercial and Administrative Law of the House Committee on the Judiciary", 108th Cong. 15-16 (2004).] the Subcommittee conducted a second hearing on ACUS that examined further the reasons why there is a need to reauthorize ACUS. ["Id."] In 2005, the Subcommittee held a hearing on the status of the Project. [ [http://www.judiciary.house.gov/media/pdfs/printers/109th/24282.pdf "Administrative Law, Process, and Procedure Project: Hearing Before the Subcommittee on Commercial and Administrative Law of the House Committee on the Judiciary"] 109th Cong.(2005)] In 2006, the Subcommittee held a hearing that focused on the Congressional Review Act in light of that Act’s tenth anniversary. [ [http://judiciary.house.gov/media/pdfs/printers/109th/26770.pdf "Tenth Anniversary of the Congressional Review Act: Hearing Before the Subcommittee on Commercial and Administrative Law of the House Committee on the Judiciary"] , 109th Cong. (2006).] Also in 2006, Subcommittee held a hearing ["The Regulatory Flexibility Improvements Act: Hearing on H.R. 682 Before the Subcomm. on Commercial and Administrative Law of the H. Comm. on the Judiciary", 109th Cong. (2006).] on how the Regulatory Flexibility Act [Pub. L. No. 96-354, 94 Stat. 1164 (1980) (codified at 5 U.S.C. Sections 601-612).] has been implemented since its enactment in 1980 and whether proposed legislation, such as H.R. 682, the “Regulatory Flexibility Improvements Act” would adequately address certain perceived weaknesses in the RFA. [The GAO has on numerous occasions cited various deficiencies with the RFA. "See, e.g., SBBEFA Compliance - Is It the Same Old Story?: Hearing Before the House Committee on Small Business", 107th Cong. 51 (2002) (statement of Victor Rezendes, Managing Director - Strategic Issues Team, U.S. Government Accountability Office); "Regulatory Flexibility Act - Status of Agencies’ Compliance: Hearing Before the Senate Committee on Small Business", 104th Cong. 51 (1995) (statement of Johnny C. Finch, Assistant Comptroller General - General Government Division, U.S. Government Accountability Office); U.S. Government Accountability Office, Regulatory Flexibility Act: Status of Agencies’ Compliance, GAO/GGD-94-105 (Apr. 27, 1994); U.S. Government Accountability Office, Regulatory Flexibility Act: Inherent Weaknesses May Limit Its Usefulness for Small Governments, GAO/HRD-91-16 (Jan. 11, 1991).] In the summer of 2006, the CAL Subcommittee held a hearing on the 60th anniversary of the Administrative Procedure Act [u.s.c. section 551 "et seq."] discussing the question as to if the Act is still effective in the 21st Century. ["60th Anniversary of the Administrative Procedure Act: Where do we go from Here?: Hearing before the Subcommittee on Commercial and Administrative Law of the House Committee on the Judiciary", 109th Cong. (2006).]

Symposia

In addition to conducting hearings, the CAL Subcommittee to date has cosponsored two symposia as part of the Project. The first symposium, held in December 2005, was on Federal E-Government Initiatives. This program, chaired by Professor Cary Coglianese of the University of Pennsylvania Law School, examined the Executive Branch’s efforts to implement e-rulemaking across the federal government. A particular focus of this program was on the ongoing development of a government-wide Federal Docket Management System (FDMS). Presentations at the symposium were given by government managers involved in the development of the FDMS as well as by academic researchers studying e-rulemaking. Representatives from various agencies, including the Office of Management and Budget (OMB), the United States Environmental Protection Agency, and the Government Accountability Office (GAO), discussed the current progress of e-rulemaking. In addition, academics reported on current and prospective research endeavors dealing with certain aspects of e-rulemaking. The program offered a structured dialogue that addressed the challenges and opportunities for implementing e-rulemaking, the outcomes achieved by e-rulemaking to date, and strategies that could be used in the future to improve the rulemaking process through application of information technology.

The [http://www.american.edu/rulemaking/news/index.htm second symposium] , held at American University, examined the role of science in the rulemaking process. The symposium consisted of four panels: OMB’s recent initiatives on regulatory science, science and the judicial review of rulemaking, science advisory panels and rulemaking, and government agencies’ science capabilities.

A further symposium is planned for September 11, 2006 at CRS in Washington, D.C. It will provide a forum for the presentation of the results of various studies conducted as part of the Project and examine such issues as the respective roles that the judicial, executive, and legislative branches play in their review of rules.

Ongoing studies

"Study on how Proposed Rules are Developed"

As part of the Project, several studies are also being conducted. One study, by Professor William West of Texas A&M University, examines the role of public participation before notice and comment. [ The East West Research Group, Outside Participation in the Development of Proposed Rules - Exploratory Research of Rule Proposal Development in Government Agencies, at 4 (July 11, 2006). 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. Agencies, after considering these comments, publish final rules. Although critical decisions regarding proposed rules are often made in the months (and sometimes years) before rules are published, little is known about how agencies actually develop these rules. In light of the possibility that the impact of the notice and comment requirement may be “limited by the fact that some of the most critical decisions in rulemaking are often made before a proposal appears in the Federal Register," the study will cover how proposed rules are developed as a policy-making process. ["Id."]

"Judicial Review Study"

According to an informal review by CRS, approximately fifty percent of court challenges to agency rulemakings are successful. To confirm this estimate, CRS arranged to have an independent analysis of every case involving administrative agencies that were appealed to the U.S. Court of Appeals for all 12 circuits over a ten-year period. [Professor Jody Freeman of Harvard University is conducting the study under supervision of CRS.] The study is examining a database of 3,075 cases supplied by the Administrative Office of the U.S. Courts. The text of each case will be analyzed to determine its outcome (e.g., reversed or affirmed), the reasons for the court’s decision, and the judges involved in the decision. In addition, trends in the data such as whether certain agencies or types of rules are more likely to be reversed, will also be examined. The results of this study will be summarized in a written report to be completed by September.

"Science Advisory Committees Study"

A study on science advisory committees is being conducted by the Maxwell School of Syracuse University.

References