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THE ROLE OF CONGRESS IN MONITORING ADMINISTRATIVE RULEMAKING

THURSDAY, SEPTEMBER 25, 1997
House of Representatives,
Subcommittee on Commercial and Administrative Law,
Committee on the Judiciary,
Washington, DC.

    The subcommittee met, pursuant to notice, at 10 a.m., in room 2141, Rayburn House Office Building, Hon. George W. Gekas (chairman of the subcommittee) presiding.

    Present: Representatives George W. Gekas, Lamar S. Smith, Bob Inglis, Ed Bryant, Steve Chabot, Jerrold Nadler, Sheila Jackson Lee and William D. Delahunt.

    Also present: James W. Harper, counsel, Audray Clement, staff assistant, and David Lachmann, minority professional staff member.

OPENING STATEMENT OF CHAIRMAN GEKAS

    Mr. GEKAS. The hour of 10:00 having arrived, this subcommittee will come to order. We note the presence of a hearing quorum. The lady from Texas, Ms. Jackson Lee and I, according to the rules, do form that quorum.

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    We will proceed by having some of our colleagues become the first witnesses on the first panel as we examine one of the most important phases of our subcommittee's jurisdiction, the role of the Congress in the rulemaking process.

    Many of you will recall that when the Contract with America completed its work, it devolved on to this subcommittee the task of doing regulatory reform, reg flex as we call it, a series of hearings and propositions that found their way into law, all revolving around the rulemaking process.

    We still hear from our constituents at home about the heavy hand of the regulators, and strive as we may to say that we have tried to improve it and have improved it by leaps and bounds, perhaps that evidence has not seeped down to the level of our constituents, who are engaged regularly in battle with the regulators. So we still have more to do, and we have to assess what we have done up to now.

    From the very beginning, back in the late 1940s, after World War II, when the Administrative Procedures Act came into play, we have been plagued by this tug of war between the regulated and the regulator.

    Now, the Congress is to blame for a lot of this in delegating responsibility and then failing to monitor properly, or failing to make sure that the agencies understand exactly what the congressional intent was, or failing to rebut an assumption made by the regulators about the congressional intent. At any rate, a lot of blame rips back to the Congress itself.

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    On the other hand, some of the advances we have made, particularly the last few years since the Contract with America, and, in my judgment, one of the most important things of which was to provide for judicial review in some of these matters—the subcommittee will be in order—judicial review was one of the most important new assets that we applied to the rulemaking process. We want to see, over a period of time, how that will be working.

    And, of course, the most recent of these developments, also borne out of the Contract with America, is the CRA, as we call it, which we are not sure what its final role would be in the rulemaking process.

    But our colleagues who are going to testify here today will give us an insight on how they believe things are working and whether or not we have more work to do. No matter what they tell us, we know we have more work to do. I think that they will be helping to set the pattern for the particular issues that will come to our attention in the near and in the farther future.

    [The bills H.R. 1704 and H.R. 1036 follows:]

INSERT OFFSET RING FOLIOS 1 TO 17 HERE

    Mr. GEKAS. With that, I will recognize the lady from Texas for a brief opening statement.

    Ms. JACKSON LEE. I thank the chairman very much, and certainly I appreciate the fact that we have the opportunity to hear and to analyze the expertise of our colleagues who have come this morning to share both their anecdotal stories as well as certainly their direct and personal experiences.
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    I do think H.R. 1704 and H.R. 1036, which have some innovative, but radically innovative, revisions of our current administrative rulemaking process, Mr. Chairman, deserves our consideration. They are noble undertakings. Many of us have worked with agencies and certainly have perceived some of the excesses that have occurred. In the other body, as we speak, are hearings that we would probably like not to be occurring dealing with the IRS and some of the implementation of the regulatory process as it relates to the IRS.

    The question then would be the capability, however, of Congress to exercise this power of oversight. Clearly, the courts have held that constitutional power implies a power of delegation. So we do recognize that we have, as a congressional body, the ability to empower or to delegate authorities that we have in order to implement our goals and our legislation.

    The Court language in particular out of Lichter v. United States indicates that constitutional power implies a power of delegation of authority under it sufficient to effect its purposes. That was dicta, but I think we can get a sense of the responsibilities and the authority we have to dictate.

    Many people believe that these powers, however, are too broad and without adequate delegation, and to one singular branch of government gives them a lot more power than we would like for them to have.

    I would note and express my concern on H.R. 1036, and I hope my colleagues will enlighten me, that it might create a series of complicated bureaucratic processes that may best not be lodged in Congress. For example, the amount of time that it would take for Congress to oversee this process; the possible abuse by rushing through on regulations and, therefore, creating that process and problem; the prohibition against necessary judicial review because the new rules for these agencies will be laws and not merely regulations; and the overwhelmingly voluminous catalogs of information that would be generated by the new laws are serious problems which we should consider.
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    The creation of a new regulatory agency to analyze agency action is a seemingly contradictory act, but certainly worth juxtaposing against the existing Federal bureaucratic machinery.

    I would just close by simply acknowledging that a Congressional Office of Regulatory Analysis would be instead of the GAO. I hope as we proceed in these hearings you can offer to us where the GAO has been faltering. And with smiles being perceived, I imagine that I will hear that as well.

    I will close, Mr. Chairman, by again emphasizing the importance of this hearing, and I think I have sufficiently stated my concern and matched that with my desire for government to always be more effective, singular in its purpose, and that is to serve the American people, and however we can produce legislation that serves the American people and yet fulfills the responsibilities appropriately of this Congress, I will certainly give due consideration.

    I thank the chairman and would like to have—would raise unanimous consent to have my full statement submitted in the record.

    Mr. GEKAS. Without objection.

    [The prepared statement of Ms. Jackson Lee follows:]

PREPARED STATEMENT OF SHEILA JACKSON LEE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS

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    Thank you, Mr. Chairman, for convening this hearing to discuss the questions that have been raised concerning the FBI's involvement in a number of recent cases.

    I also want to thank director Freeh for joining us today. I want to share with Director Freeh my appreciation of the excellent work he has done over the last few years within the structure of the FBI. On behalf of the people of the 18th Congressional District I would like to thank director Freeh and every member of the FBI for the courageous acts they continue to perform for each and every American.

    I applaud the FBI for their successful handling of such cases the Freeman Standoff and the arrest of the Unabomber suspect. I am concerned, however, that these very public successes have been equalled by a number of very public problems. I particular, I am referring to the circumstances surrounding the interview of Richard Jewell in the Olympics bombing case and the deficiencies and misconduct tied to the FBI Lab.

    The FBI is the finest law enforcement organization in this country. It is given a terrific responsibility and I believe that on the whole it meets this charge. I believe, however, that public confidence in the FBI has been slightly undermined by the cases such as those I just mentioned. These hearings are an important step in restoring public confidence and beginning to correct the structural weaknesses that allowed these problems to arise in the first place. Director Freeh, I look forward to working with you to that end.

    Thank you.

    Mr. GEKAS. I believe it might be prudent to at least hear our colleagues in the House as quickly as we can. The Senator will have to defer to the voting pattern that has developed here.
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    Mr. BROWNBACK. I am pleased to do that.

    Mr. GEKAS. So let's start with Representative Kelly.

STATEMENT OF HON. SUE W. KELLY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK

    Mrs. KELLY. Good morning, Mr. Chairman and Members of the subcommittee. I would like to commend you for holding the hearing and thank you for inviting me to testify.

    Like most of my colleagues, I was greatly encouraged with the passage of the Small Business Regulatory Enforcement Fairness Act in March of 1996. This legislation should improve the regulatory environment in which our Nation's small businesses are forced to operate. However, in order for SBREFA to be effective, indeed our entire regulatory system to be effective, Congress has to be an active participant in all facets of the regulatory process.

    One particular component of SBREFA that is of particular interest to me is what is commonly referred to as the Congressional Review Act. It provides Congress with a mechanism to review new regulations and prevent those that it decides are too burdensome or inconsistent with congressional intent from taking effect.

    However, I am concerned with the fact that Congress is not using its authority under the law. In the roughly 18 months since the Congressional Review Act has been effective, over 5,800 new regulations have been promulgated by the executive branch, including 93 major regulations with an impact of over $100 million or more in the economy.
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    Yet, Congress has failed to pass even one resolution of disapproval for any of these 5,800 regulations. In the House of Representatives, there has not even been one vote. In my opinion, this is not the way the law was designed to operate. Unless Congress more vigorously implements its authority under the Congressional Review Act, I am concerned that this law will become a paper tiger that will empower agencies to act even more boldly because Congress has demonstrated a lack of political will to challenge their decisions.

    This is a cause of great concern because of the negative, often unintended impact that regulations often have. Regulations act like a hidden tax on the economy. Some estimates have placed the cost of complying with Federal regulations as high as 700 billion a year. Additionally, these costs fall disproportionately on small business owners, exactly the individuals who are least able to afford them.

    To help address the problem of a regulatory state that has run out of control, I have introduced legislation which would establish a Congressional Office of Regulatory Analysis, or CORA. I think it is a relatively minor action that would greatly improve the regulatory process by giving Members of Congress better information about the impact of new regulations, which in turn will assist them in deciding whether to use—whether the use of the Congressional Review Act is warranted.

    CORA would operate as an information gathering office, used to support the information needs of Members of Congress. It would conduct its own regulatory impact analysis of new regulations on a selective basis. These analyses would provide a second opinion on agencies' actions, helping Members determine the actual impact that the regulation would have on the economy. CORA would have no authority to force agencies to withdraw their regulations or alter them in any way. It would simply produce information that Members could use in whatever ways they deemed most advisable to help prevent redundant or needless rules and regulations.
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    Some may ask why an office like CORA is needed. Unfortunately, under the current system, reliable information about new regulations is often limited. We all know that regulatory agencies are already required to complete a number of analyses under current laws and executive orders. A problem exists, however, because agencies often ignore these requirements or fail to thoroughly and honestly comply with them. Aside from what an agency may or may not do, there is no other nonpartisan source of information that Congress can rely upon.

    OIRA, Office of Information of Regulatory Affairs, is located in the OMB and is supposed to review agency regulations to ensure their consistence with applicable law, the President's priorities, and do not conflict with policies or actions taken or planned by another agency. However, this review function seldom takes place, certainly less than in previous years, and when it does, it rarely results in changes.

    Additionally, the GAO was given new reporting requirements under the Congressional Review Act, but the reports are only on procedural compliance and lack substance. They are simply a checklist of what the promulgating agency may or may not have done. They provide very little information that would help Congress make informed decisions about the quality or the economic impact of a particular regulation.

    A useful analogy in trying to understand the functions of CORA can be found in the CBO. We are all familiar with the functions that CBO performs. In a nutshell, it provides estimates about the costs of proposed legislation. Over the years, CBO has come to be a respected source of information about the budget process. When it comes to a regulatory side of the equation, however, Congress does not have similar expertise.
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    Compared to the bloated regulatory apparatus of the executive branch, Congress has virtually no resources with which to monitor the regulations that are being promulgated. One recent study estimated that in 1998 there will be roughly 126,000 Federal employees administering a Federal regulatory establishment at a cost of $17.2 billion. These numbers are overwhelming. If Congress——

    Mr. GEKAS. Can the lady come back after the vote? Would the lady from New York come back?

    Mrs. KELLY. I would be more than willing to do that.

    Mr. GEKAS. I think we should. If the Senator would hold on, we shall recess until 10:25 for the purpose of accommodating the vote on the floor.

    Mrs. KELLY. Thank you.

    [Recess.]

    Mr. GEKAS. The hour of recess having expired, we will resume the hearing and babble to ourselves until our witnesses appear.

    Ever since I undertook the gavel of this subcommittee—I just want to brag a little bit—I have started every single meeting of this subcommittee, hearing, markup, whatever type of meeting we have had, on time. Invariably I have had to recess immediately as I bring the subcommittee to order because of a lack of a quorum, but in my own mind at least I have kept faith with the hour of convention of these hearings.
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    Mr. DELAHUNT. We have one of our star witnesses here now, Mr. Chairman.

    Mr. GEKAS. Yes. The only thing is that the lady from New York was cut off by the Chair in the middle of her presentation, and so we may want to wait for a few minutes.

    Is that all right, J.D.? And if isn't, what can you do about it?

    Mr. HAYWORTH. Mr. Chairman, I always bow to your innate knowledge and wisdom.

    Mr. GEKAS. I have noticed that.

    Mr. HAYWORTH. In fact, I look forward to the day as the—of course, full committee chairmanship is a little bit down the road, but I look forward to your portrait up here.

    Mr. GEKAS. I have started it already.

    Mr. HAYWORTH. You have already worked on it? Well, you are a man of many talents indeed, a Renaissance man, in fact, Mr. Chairman.

    Mr. GEKAS. That is correct.
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    Mr. DELAHUNT. Mr. Chairman, I am confident that the good Representative from the desert will be very brief and concise and incisive, of course—also in his remarks.

    Mr. GEKAS. That shows your inexperience.

    Mr. DELAHUNT. I guess that does.

    Mr. GEKAS. Didn't I tell the audience we are going to babble until the witnesses are ready to testify?

    Mr. HAYWORTH. Mr. Chairman, I don't mean to besmirch my other colleagues, but I just wanted to show that my presence, I believe, demonstrates my commitment, my fealty to the proceedings of this august subcommittee, and I thank my gentleman—my friend from the great Bay State, Massachusetts, for that vote of confidence in my lack of verbosity. I really appreciate that.

    Mr. DELAHUNT. Well, that is well noted, Representative. I eagerly await your remarks.

    Mr. GEKAS. Babble was too strong a word.

    I fear that everything that we have said thus far has been recorded. Look at the nimble fingers working.
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    Mr. DELAHUNT. We can move to strike, too, Mr. Chairman.

    Mr. GEKAS. Perhaps the gentleman from Massachusetts is correct. Why don't we start with Representative Hayworth, who has long been interested in regulatory reform, and who has advanced several principles in pursuit of our relentless effort to bring the regulators under control.

    We recognize the gentleman.

STATEMENT OF HON. J.D. HAYWORTH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ARIZONA

    Mr. HAYWORTH. And I thank the chairman, my friend from Pennsylvania, and Members of the subcommittee who are present. This is a wonderful opportunity to testify about reforming the administrative rulemaking process. Indeed, I believe this is one of the most important reforms our Congress can undertake.

    My testimony today will focus on the practice of unconstitutionally delegating legislative powers to the executive branch; the effects of such delegation; the flaws of the Congressional Review Act, which I will henceforth refer to as the CRA; and why we should enact the Hayworth-Brownback bill.

    As you know, Mr. Chairman, I testified in support of the Congressional Responsibility Act before this very subcommittee last year. This year I reintroduced the legislation as H.R. 1036, and my good friend and former colleague in the House, Senator Brownback, has introduced companion legislation, S. 433, in the Senate.
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    The goal of our bill is simple, Mr. Chairman: To reestablish the constitutionally granted power of Congress to make laws. As Senator Brownback will come to reinforce in a few minutes, Article I, section 1 of the Constitution clearly states all, let me emphasize the word ''all,'' all legislative powers herein granted shall be vested in a Congress of the United States. But amazingly, for the last 60 years, Congress has willfully given away its constitutionally granted power to make laws, and since 1935, not a single such delegation of power has been invalidated by our Supreme Court.

    Not only is delegating legislative power contrary to Article I, section 1, it also clearly violates the Constitution's separation of powers clause by making the executive branch the maker and enforcer of laws. James Madison wrote in the Federalist Papers that such a consolidation of authority into one branch was tyrannical. He was right. Our Founders also knew that by vesting lawmaking powers solely in Congress, the people could hold the legislative branch accountable for its actions. By delegating powers of Congress to the executive branch, the people have no recourse because the executive branch employees who craft these rules and regulations are unelected and unaccountable.

    Delegation gives life to bad laws because it allows legislators to make ambiguous laws for which they can take credit without taking responsibility for the consequences or their costs. Delegation also allows powerful special interests to expend substantial resources in private to benefit the few at the expense of the many.

    The 104th Congress realized the executive branch was wielding too much power in our legislative process, and in March of 1996 Congress passed the Small Business Regulatory Enforcement Fairness Act. A provision in the bill, known as the Congressional Review Act, or CRA, now allows Congress to review new regulations and prevent them from taking effect. While I am a strong supporter of the CRA as an important first step in having Congress assert more influence in the regulatory process and take back its constitutionally granted responsibilities, I regret that it has not yet been used to overturn even one proposed rule or regulation. In fact, not one disapproval motion has even made it to the House or Senate floor for a vote.
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    There are many reasons the CRA has not been used, the most important being that as a practical matter, it takes a two-thirds majority to overturn a rule because the executive branch is almost certain to veto any resolution disapproving a rule it created. Therefore, executive branch employees can still craft rules and regulations that could not garner a congressional majority.

    The final problem with the CRA is the fact that it may not be constitutional because the CRA is similar to the legislative veto that was struck down in INS v. Chadha. On the other hand, the Hayworth-Brownback bill would pass constitutional muster because it would reaffirm Article I, section 1 of the Constitution and the separation of powers clause.

    Mr. Chairman, with that in mind, I would like now to briefly explain the Hayworth-Brownback concept. Unlike the CRA, Hayworth-Brownback would require every rule or regulation to be specifically approved by a simple majority vote of both houses of Congress.

    Let me stop here to emphasize this important distinction. Under current law, Congress can only disapprove regulations. Under our bill, Congress must specifically approve every regulation. Under our bill, if a resolution specifically approving new regulations is not sent to the President within 60 days, the regulations are null and void, and the process begins anew.

    In other words, my bill would force executive branch agencies to work with our Congress in formulating new rules and regulations. I should note that Hayworth-Brownback would apply only to new regulations. It will not apply to those regulations of particular applicability, any interpretive rule, general statement of policy or any regulation of agency organization, personnel, procedure or practice.
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    Now detractors will argue that Congress does not have the time to review all rules and regulations, or argue this legislation will delay implementation of rules and regulations, or argue that this is a backhanded attempt at regulatory reform. I don't have the time during this brief statement to counter those arguments, but I would simply ask my colleagues to review my full testimony, which I would ask unanimous consent to put in the record, which retorts all of these fallacious arguments.

    Mr. GEKAS. Without objection.

    Mr. HAYWORTH. Mr. Chairman, I know that Senator Brownback will reemphasize the bipartisan support for this bill. I would like to also point that fact out, and that this Congressional Responsibility Act was borne out of the concept that current Supreme Court Justice Stephen Breyer wrote about in the 1984 Law Review Article in which he extolled the virtues of replacing the legislative veto by an expedited procedure for Congress to pass rules and regulations.

    Again, Mr. Chairman at this point I would like to submit several articles from both sides of the ideological spectrum for the record.

    Mr. GEKAS. They will be accepted for the record without objection.

    Mr. HAYWORTH. I thank the subcommittee Chair.

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    Ladies and gentlemen, my colleagues, what I am getting at is simple. There are no partisan stripes in this debate because this concept is supported by both liberals and conservatives. It just makes common sense to rely on the principles of our Constitution.

    A defining episode in the creation of our country was the Boston Tea Party. Scores of American patriots rallied behind the slogan of, ''No taxation without representation.'' Mr. Chairman, committee Members, I believe the American people today are rallying to a similar cry against the executive branch agencies who are regulating and in essence running our country by bureaucratic fiat. No regulation without representation. It is time for Congress to take back its constitutionally granted powers to enact laws.

    Mr. Chairman, again, I would like to thank you and my colleagues on the subcommittee for listening to this argument today and talking about this.

    We often talk about reforming the way Washington works, and enactment of our Congressional Responsibility Act by this Congress would demonstrate to the American people just how serious we are about achieving the goal.

    Mr. Chairman, I thank you for the time.

    Mr. GEKAS. I thank the gentleman.

    [The prepared statement of Mr. Hayworth follows:]

PREPARED STATEMENT OF HON. J.D. HAYWORTH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ARIZONA
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    Mr. Chairman, members of the subcommittee, and distinguished guests, thank you for allowing me the opportunity to testify about reforming the administrative rulemaking process. Indeed, I believe this is one of the most important reforms Congress can undertake. My testimony today will focus on the practice of unconstitutionally delegating legislative powers to the executive branch, the effects of such delegation, the flaws of the Congressional Review Act—which I'll refer to as the CRA—and why we should enact the Congressional Responsibility Act.

    As you know, Mr. Chairman, I testified in support of the Congressional Responsibility Act before this very subcommittee last year. This year I reintroduced the legislation as H.R. 1036, and my good friend and former colleague in the House, Senator Brownback, has introduced companion legislation, S. 433, in the Senate. The goal of our bill is simple: to reestablish Congress's constitutionally-granted power to make laws.

    As Senator Brownback stated earlier, Article I, Section 1 of the Constitution clearly states, ''All,'' and let me emphasize the word ''all,'' ''All legislative powers herein granted shall be vested in a Congress.'' Amazingly, for the last 60 years, Congress has willfully given away its constitutionally-granted power to make laws. For the first 150 years of our republic, the Supreme Court held that the transfer of legislative power to another branch was unconstitutional. However, since 1935 not a single such delegation of power has been invalidated by the high court.

    Not only is delegating legislative power contrary to Article I, Section 1 of the Constitution, but it also clearly violates the Constitution's separation of powers clause by making the executive branch the maker and enforcer of laws. James Madison wrote in the Federalist Papers that such a consolidation of authority into one branch was tyrannical. He was right.
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    In 1996, the Federal Register published 3,208 proposed rules, in essence laws, that encompassed 15,369 pages of text. By contrast, Congress did not even propose, let alone vote on, this many bills. According to the Small Business Administration, the cost of these regulations was $677 billion and is expected to rise to $709 billion by 1999. This imbalance demonstrates why many regulatory analysts have concluded that more consequential law is generated in the executive branch than in the legislative branch.

    Our Founders also knew that by vesting law-making powers solely in Congress, the people could hold the legislative branch accountable for its actions. By delegating Congress's powers to the executive branch, the people have no recourse, because the executive branch employees that craft these rules and regulations are unelected and unaccountable.

    Delegation gives life to bad laws because it allows legislators to make ambiguous laws for which they can take credit without taking responsibility for their consequences or their costs. Essentially, delegation allows Congress ''to have its cake and eat it too.'' Here's how it works.

    Congress passes broadly written, but popular, laws. However, unelected bureaucrats then get to fill in the details, writing rules and regulations that are many times contrary to what Congress intended. Members of Congress then get to reap additional benefits by helping constituents through the mine fields of federal regulations. At the same time, it can blame bureaucrats for misinterpreting its intentions. The legislator can play both sides and win. Unfortunately, the loser in all of this is the people caught in the middle of these regulatory mine fields.
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    Delegation also allows powerful special interests to expend substantial resources in private to benefit the few at the expense of many. Simply put, if we are to restore integrity, responsibility, and confidence to the federal government, one of the best ways we can do this is by ending the unconstitutional delegation of legislative powers to the executive branch.

    The 104th Congress realized the executive branch was wielding too much power in the legislative process, and in March 1996, Congress passed the Small Business Regulatory Enforcement Fairness Act (SBREFA). A provision in the bill, known as the Congressional Review Act or CRA, now allows Congress to review new regulations and prevent them from taking effect.

    While I am a strong supporter of the CRA as an important first step in having Congress assert more influence in the regulatory process and take back its constitutionally-granted responsibilities, I regret that it has not yet been used to overturn even one proposed rule or regulation. In fact, not one disapproval motion has even made it to the House or Senate floor for a vote.

    There are many reasons the CRA has not been used, the most important being that as a practical matter it takes a two-thirds majority to overturn a rule because the executive branch is almost certain to veto any resolution disapproving a rule that it created. Therefore, executive branch employees can still craft rules and regulations that could not garner a congressional majority.

    The final problem with the CRA is the fact that it may not pass constitutional muster because the CRA is similar to the legislative veto that was struck down in INS v. Chadha. On the other hand, the Congressional Responsibility Act would pass constitutional muster because it would reaffirm Article I, Section 1 of the Constitution and the ''separation of powers'' clause.
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    Mr. Chairman, with that in mind, I would now like to briefly explain the Congressional Responsibility Act. Unlike the CRA, the Congressional Responsibility Act would require every rule or regulation to be specifically approved by a simple majority vote of both houses of Congress.

    Let me stop here to emphasize this important distinction. Under current law, Congress can only disapprove regulations. Under my bill, Congress must specifically approve every regulation.

    Under my bill, if a resolution specifically approving new regulations is not sent to the President within 60 days, the regulations are null and void and the process begins anew. One of three things can then happen. Congress can write its own regulations, the executive branch can submit new ones, or, preferably, the Congress and executive branch can come together to write consensus regulations.

    In other words, my bill would force executive branch agencies to work with Congress in formulating new rules or regulations.

    I should note that the Congressional Responsibility Act would apply only to new regulations. It will not apply to those regulations of particular applicability, any interpretive rule, general statement of policy, or any regulation of agency organization, personnel, procedure, or practice.

    Detractors will say that there is no way that Congress has the time to review all rules and regulations that are promulgated by the executive branch. Regardless of the time implications, it is Congress's duty to review rules and regulations, as enumerated in Article I, Section 1 of the Constitution.
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    However, as I stated in my testimony last year, I have frequently had the honor and privilege of serving as Speaker Pro Tempore. On more than one occasion, I have presided over largely ceremonial debates in which we took several hours to name some federal building after a noteworthy American. I ask you: If we can take the time to name courthouses, airports, military bases, and other places, don't we have enough time to vote on the rules and regulations that profoundly affect the citizens of this country?

    Other opponents of my bill argue that it would delay the implementation of rules and regulations. Not so. Rules and regulations are already the subject of lengthy delays. For example, the final rule for leaded gasoline took nearly 10 years to finalize because it was the focus of intense litigation.

    However, under the Congressional Responsibility Act, Congress becomes the final arbiter in rulemaking. The bill provides that any regulation passed by Congress under the bill would not be an agency action for the purpose of judicial review under chapter 7 of title 5, United States Code. This would bring to a halt the litigation that delays implementation of regulations.

    Finally, opponents of our concept will say that this is a backhanded attempt at regulatory reform. First, I can't imagine that anyone really believes that unelected bureaucrats will write better regulations than those who represent the people who have to live under them. By returning to Congress the power to regulate, we will make Congress accountable to the people for all federal laws. This will make for better government.

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    Mr. Chairman, I know Senator Brownback has touched on the bipartisan support for this bill. I want to reemphasize this and point out the fact that the Congressional Responsibility Act was borne out of a concept that Supreme Court Justice Stephen Breyer wrote about in a 1984 law review article in which he extolled the virtues of replacing the legislative veto by an expedited procedure for Congress to pass rules and regulations. Other notable scholars from the left and right also embrace this concept.

    In fact, Nadine Strossen, President of the American Civil Liberties Union (ACLU), was invited to testify here today. Unfortunately, she was unable to attend because of scheduling conflicts. In addition, Judge Robert Bork and other conservative scholars have written extensively on this subject. And at this point, Mr. Chairman, I would like to submit several such articles for the record.

    What I am getting at is simple; there are no partisan stripes in this debate because this concept is supported by both conservatives and liberals. It just makes common sense to fall back on the principles of the Constitution.

    A defining episode in the evolution of the United States was the Boston Tea Party. Scores of American patriots rallied behind the slogan of ''no taxation without representation.''

    Today, I believe the American people are rallying to a similar cry against the executive branch agencies who are running our country by bureaucratic fiat: ''No regulation without representation.'' It's time for Congress to take back its constitutionally-granted powers to enact laws.
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    Mr. Chairman, I again want to thank you, as well as the subcommittee members and our distinguished guests. We often talk about reforming the way Washington works. Enactment of the Congressional Responsibility Act by this Congress would demonstrate to the American people how serious we are about achieving that goal.

    Mr. Chairman, I thank you for your attention and welcome any questions you or any other members of the subcommittee might have.

    Mr. GEKAS. I think now, in a proper segue, we would have to go to Senator Brownback to flesh out the joint effort that has been made by the two gentlemen at the table, and we will ask the lady from New York to hold still for a while, if she will.

    Mrs. KELLY. I will stay.

    Mr. GEKAS. Senator, welcome to your old haunting grounds.

STATEMENT OF HON. SAM BROWNBACK, A UNITED STATES SENATOR FROM THE STATE OF KANSAS

    Mr. BROWNBACK. Thank you very much, Mr. Chairman, and thank you for allowing me to be here today. In a non-Senate fashion, I will try to be brief with the point and try not to reiterate too many of the points that have already been covered.

    And I am delighted to be the Senate sponsor of this bill. Congressman Hayworth put it forth in the 104th Congress. We are putting it forward bicamerally in the 105th Congress. We have got 12 cosponsors of the bill to date in the Senate.
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    J.D. has hit most of the points, and Congresswoman Kelly has hit a number of the points as well, I think, that are applicable here. Really it is about the legislative power remaining in the legislative branch. That is about an issue of constitutional authority rather than about regulatory reform or about unmitigated power of Federal agencies. We are talking about the basics in the Constitution.

    And as you know, in Article I, section 1, it says, all legislative powers herein shall be vested in the Congress. It is interesting for me to note that today, now, most people believe that there are more substantive laws, quote/unquote, coming out of the regulatory branch, the executive branch, than there are out of the legislative branch.

    More people view those as—and just think of what we have got pending today, whether it is after the telecommunications act that we passed, now all eyes are focused on the FCC as to how they are going to implement this law. And it is not about what is Congress going to do; it is about this substantive set of regulations coming out and interpretations out of the FCC.

    You can look at a whole other set of issues, whether in the major farm reforms that we have passed, now it is all about what are the regulations going to do that we have passed? And you can look at a whole number—host of areas of laws that we passed, the real issue is how are they going to be interpreted?

    And typically what we do is we beat on the agencies or tell people back home, well, we passed a good law, but now it is how they are going to interpret it that is going to make all the difference in the world, and I can't do anything against this alphabet agency.
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    Well, it was never designed to be that way. That is an unaccountable system. It is an unaccountable system, and it shouldn't be allowed to stay that way. We put forward this procedure as a way of really saying this is what the Constitution is about.

    There has been a huge amount of encroachment on the Constitution this century. There has been a very large encroachment on the legislative authority that has been taken over by the executive branch in these regulations. And you can look at countless different examples that are taking place, and the majority of the law-making in this country is now done by an unelected body that is basically unaccountable as well.

    So I really think we have really got to get at the heart of this issue. That is what this bill attempts to do. I applaud the subcommittee here for taking this up and looking at it. It is a serious, difficult issue because there is going to be lots of different points on this, and how you actually get this into practice in a legislative body that is already very busy to actually take back its authority. I mean, this is something that needs to be looked at and studied, but it is clearly an area where there has been an unconstitutional delegation of authority of a massive quantity that has happened over a period of years, and we need to take it back.

    I would like to have my full written statement submitted to the record, Mr. Chairman.

    Mr. GEKAS. Without objection and with gratitude, we will accept your written statement.
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    Mr. BROWNBACK. Thank you.

    [The prepared statement of Mr. Brownback follows:]

PREPARED STATEMENT OF HON. SAM BROWNBACK, A SENATOR FROM THE STATE OF KANSAS

    Mr. Chairman, Committee members, I am honored to be able to testify here today before some of my old colleagues.

    Today, I am here to testify regarding the Congressional Responsibility Act of 1997 originally introduced by my good friend, Congressman J.D. Hayworth, during the 104th Congress and reintroduced early in the 105th. It is a bill which I am sponsoring in the United States Senate, where we currently have 12 cosponsors.

    The underlying issue before us today is not about regulatory reform, or even about the unmitigated power of federal agencies—its about the Constitution—and it is about Congress.

    For much of this century Congress has abdicated one of its most fundamental responsibilities—the creation of law—to unelected, unaccountable bureaucrats in the executive branch of the federal government.

    My bill, and the bill being considered before us today is about returning power to Congress, and ultimately it's about returning power to the people who elected us.
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    The myriad rules and regulations promulgated by the myriad executive branch agencies have the full force of law; and yet the Congress is not accountable. Our constituents can be taxed, fined, even imprisoned and all without any congressional action.

    Although we seldom seem to follow the intent of the Constitution, I think it is crucial that we begin again to live by the document that gave us our form of government. After the preamble to the Constitution, Article I, Section 1 begins: ''All legislative powers herein granted shall be vested in a Congress.''

    The Founders clearly believed that this included the power to regulate, as they had noted John Locke's wise admonition that, ''the legislative [branch] cannot transfer the power of making law to any other hands.'' They understood that if this transfer did occur, legislators would no longer be responsible for the laws that government imposes on the people.

    And for the first 150 years of our republic, the Supreme Court held that the transfer of legislative powers to another branch of government was unconstitutional. In the late 1920s, the Supreme Court, essentially succumbing to political expediency, reversed itself and upheld a law which allowed Congress to delegate its authority. The case, J.W. Hampton, Jr. & Co. v. United States, started Congress down a slippery slope. Since then, Congress has ceded its basic legislative responsibility to executive branch agencies that craft and enforce regulations with the full force of law.

    But perhaps the most pernicious aspect of delegation is that voters can no longer hold government accountable. Originally designed to be the most accountable branch of government, Congress has grown increasingly irresponsible. The fundamental link between voter and lawmaker has been severed. A handful of broadly written laws has spawned a virtual alphabet soup of government agencies and an overwhelming regulatory burden that undermines the very idea of representative government.
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    Many regulatory analysts believe more consequential law is generated in the executive branch than in the legislative branch. The Federal Register, which in 1995 churned out some 4,713 final rules according to the Office of Management and Budget, states in its purpose that it ''provides a uniform system for making available to the public regulations...having legal effect.''

    In short, the executive branch has assumed the law-making authority given to the Congress.

    I think this is wrong.

    Therefore, along with Congressman Hayworth, I have introduced legislation that would restore the constitutional responsibility of the Congress over the formulation of all laws by making executive branch agencies accountable to the American people through their representatives in Congress.

    Under the Congressional Responsibility Act all rules and regulations would have to come before the Congress before they could be enacted into law. Congress would then have to have an up or down vote on the proposed rule or regulation before it could take effect. The bill provides for consideration of rules and regulations in an expedited manner, unless a majority of Members vote to send it through the normal legislative process. Under the bill, if Congress did not act then the rule would, by default, die. This approach not only puts Congress back in control of the legislative process it ends the horrendous practice of delegation without representation—and it makes Congress accountable to the laws that effect the lives of every American. It is about returning power, responsibility and authority back to Congress.
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    I should note that this concept is non-partisan and ideologically neutral, and, in fact, was first offered by then Judge Stephen Breyer who wrote that we should end delegation as a means to satisfy ''the literal wording of the Constitution's bicameral and presentation clauses.''

    The Constitution has suffered greatly this century—I think we need to restore it to its rightful preeminence as the guarantor of our freedoms, the protector of our liberties, and the guiding force for our form of government.

    Delegation is as wrong today as taxation without representation was in the 1700s. With enactment of this legislation, we will send a clear message to the bureaucrats in Washington and to the American people at home: Congress must not delegate its constitutionally-granted powers.

    Mr. GEKAS. Can you stay, or do you have to leave, Senator?

    Mr. BROWNBACK. I have got to leave. I am being buzzed here.

    Mr. GEKAS. All right. With our blessing, you may leave.

    Mr. BROWNBACK. Thank you very much, Mr. Chairman.

    Mr. GEKAS. J.D., you will stand by for some questioning?

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    Mr. HAYWORTH. I will be standing by.

    Mr. GEKAS. We will now defer to the lady from New York to allow her to complete her statement.

    Mrs. KELLY. Thank you very much, Mr. Chairman. I am just going to jump to the conclusion, which I think is important. We must never lose sight of the fact that regulations affect millions of people and billions of dollars. The stakes in human and financial terms are very high.

    Spending a small amount of money to better understand the potential impacts of a proposed regulation is a wise investment when so many lives and so many dollars are in the balance. When policy errors occur in regulations, they are very expensive; information is a bargain by comparison.

    I thank you very much for the opportunity to testify this morning. I request that the full testimony that I have be submitted for the record.

    Mr. GEKAS. Without objection, it will be so accepted.

    [The prepared statement of Mrs. Kelly follows:]

PREPARED STATEMENT OF HON. SUE KELLY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK

    Good morning Mr. Chairman and members of the Subcommittee. I would like to thank you for inviting me to testify on H.R. 1704, legislation I introduced which would establish a Congressional Office of Regulatory Analysis. You are to be commended for holding this hearing on the need for Congress to play a more active role in monitoring administrative rulemaking. I think that it is vital for Congress to take seriously its responsibilities of regulatory oversight, and I look forward to working with this Committee in hopes of achieving this goal.
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    Like most of my colleagues in the House, I was greatly encouraged with the passage of the Small Business Regulatory Enforcement Fairness Act (SBREFA) in March of 1996. This legislation represents a tremendous opportunity to improve the regulatory environment in which our nation's small businesses are forced to operate. It requires agencies to take more seriously the impact that their decisions will have on small businesses, and provides small businesses with greater means of relief from agencies that are overzealous or unfair in enforcing their regulations. However, in order for SBREFA to be effective, and indeed for our entire regulatory system to be effective, Congress must be an active participant in all facets of the regulatory process.

    One particular component of SBREFA that is in particular need of active Congressional involvement is what is commonly referred to as the Congressional Review Act. The Congressional Review Act, Subtitle E of SBREFA (5 USC §801–08), provides Congress with a mechanism to review new regulations and prevent from taking effect or discontinue regulations that they decide are too burdensome or inconsistent with Congressional intent.

    Early in the 105th Congress, I became increasingly concerned that Congress was not vigorously implementing its authority under the Congressional Review Act. The executive branch was churning out new regulations at a staggering pace, yet the Congress was not making any efforts to prevent any of these regulations from taking effect. This is more true today than ever. In the roughly 18 months that the Congressional Review Act has been effective, over 5800 new regulations have been promulgated by the executive branch, including 93 ''major'' regulations. You will recall that a ''major'' regulation is one that is estimated to have an impact of $100 million or more on the economy.
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    Over this same 18 month period, Congress has failed to pass even one resolution of disapproval for any of these 5800 regulations. By my count, only 6 resolutions of disapproval have been introduced since the end of March 1996, a total of 4 in the House of Representatives (1 in the 104th Congress and 3 in the 105th), and a total of 2 in the Senate (1 in the 104th Congress and 1 in the 105th). The Senate did vote on one resolution; however, the House of Representatives has failed to vote on even one of these. In my opinion, this is not the way the law was designed to operate. Unless Congress more vigorously implements its authority under the Congressional Review Act, I am concerned that it risks becoming a paper tiger that will empower agencies to act even more boldly because Congress has demonstrated a lack of political will to challenge any of their decisions.

    This is a cause of great concern for me because of the negative, even if unintended, impact that regulations often have. Regulations act like a hidden tax on the economy. Some estimates of the cost of complying with Federal regulations are as high as $700 billion per year. While undoubtedly there are many benefits that we get from regulations, we cannot ignore the fact that the regulations come at a high cost. For businesses, some of these costs have been quantified. One recent study commissioned by the U.S. Small Business Administration indicates that in 1992, the average small firm with fewer than 20 employees spent more than $5500 per employee to comply with federal regulations. In contrast, firms with 500 or more employees spent less than $3000 per employee.

    Regulations are also important to monitor because they change the behavior of people and organizations, forcing them to spend valuable time and resources complying with their mandates. What is troubling, however, is that they are not created in an open legislative process by elected officials. Rather, regulations are often devised behind closed doors by un-elected bureaucrats without the benefit of accountability inherently found with elected officials. This makes regulation a very attractive alternative for some bureaucrats because the effort is relatively low-cost. With a more austere budgetary environment, agencies are working more actively to achieve their institutional goals via regulatory decree rather than through a more traditional spending program.
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    To help address the problem of a regulatory state that has run out of control, I have introduced legislation which would establish a Congressional Office of Regulatory Analysis, or CORA. I think this relatively minor action would go a long way towards improving the regulatory process by giving Members of Congress better information about the impact of new regulations, which in turn will assist them in deciding whether use of the Congressional Review Act is warranted.

    If enacted, CORA would operate as an information generating office used to support the information needs of Members of Congress. It would conduct its own regulatory impact analyses of new regulations on a selective basis. These analyses would provide a ''second opinion'' on agency actions, helping Members determine the actual impact that the regulation would have on the economy and assist them in determining whether action under the Congressional Review Act should be taken. CORA would have no authority to force agencies to withdraw their regulations or alter them in any way. It would simply produce information that Members of Congress could use in whatever ways they deemed most advisable to help prevent redundant or needless rules and regulations.

    CORA is envisioned to be a small, professional, non-partisan office whose cost should be very modest. While I do not have a formal estimate on the exact cost of the office, I think that a good estimate can be found in the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget. OIRA has a budget of approximately $5 million dollars, and employs approximately 25 to 30 analysts. This figure is consistent with what I would anticipate being needed for CORA. I would also like to state for the record my commitment to funding this office with existing appropriations, ensuring that it does not contribute to any increase in the deficit.
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    Given that I just mentioned the Office of Information and Regulatory Affairs, let me briefly address why I do not think we can rely on OIRA get the job done. Under Executive Order 12866, OIRA is supposed to review agency regulations to ensure that they are consistent with applicable law, the President's priorities, and do not conflict with policies or actions taken or planned by another agency. However, this review function seldom takes place, and when it does it rarely results in changes. For example, in the ten years prior to President Clinton's first term, OIRA reviewed roughly 2200 rules per year. Last year, OIRA reviewed only 460. Additionally, of the rules that OIRA did review, they returned roughly six times fewer the amount to agencies for changes. Clearly, I do not think we can depend on OIRA, which is located within the Executive Office of the President, to act as a check against overzealous regulators.

    Unfortunately, under the current system, reliable information about new regulations is often limited. We all know that regulatory agencies are already required to complete a number analyses under current laws and executive orders. For instance, the Regulatory Flexibility Act requires a regulatory flexibility analysis for rules that will have a ''significant impact on a substantial number of small entities.'' Executive Order 12866 requires a cost-benefit analysis for regulations deemed by the promulgating agency as ''economically significant.'' The Unfunded Mandates Reform Act requires a written statement by the promulgating agency for rules that include ''any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any 1 year.''

    A problem exists, however, because agencies often ignore these requirements, or fail to thoroughly and honestly comply with them. Aside from what an agency may or may not do, there is no other non-partisan source of information that Congress can rely upon. The General Accounting Office was given new reporting requirements under the Congressional Review Act, but these reports are simply procedural and lack substance. They are simply a checklist of what the promulgating agency may or may not have done. They provide very little information that would help Congress make informed decisions about the quality or the economic impact of the regulation.
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    This is the information gap that CORA is designed to fulfill. CORA's analyses would include a procedural checklist of what the promulgating agency has done (or omitted), just as GAO currently does, but would also provide a more substantive analysis about the potential impact that the regulation would have. This would shift the current reliance on information that is generated by the Executive Branch, which is very unlikely to undermine the goals of a particular agency, to information that Congress produces.

    I think that a useful analogy in trying to understand the functions that CORA would execute can be found in the Congressional Budget Office (CBO). We are all familiar with the functions that CBO performs: in a nutshell, it provides estimates about the costs of proposed legislation. Over the years, CBO has come to be a respected source of information about the budget process for the legislative branch. When it comes to the regulatory side of the equation, however, Congress does not have similar expertise.

    Compared to the bloated regulatory apparatus of the executive branch, Congress has virtually no resources with which to monitor the regulations that are being promulgated. Consider a recent study by the Center for the Study of American Business. Based on the Budget of the United States Government submitted by the President for fiscal year 1998, it is estimated that administering the federal regulatory establishment will cost $17.2 billion in 1998. Federal employees creating and enforcing regulations will number 126,000 in 1998, a slight increase over the 1997 numbers. I find these numbers overwhelming. If Congress wants to regain some accountability over the regulatory process, it needs a small level of expertise in order to compete with the lopsided allocation of resources that now exists. I think that establishing CORA would be a small but significant way to assist Congress in leveling the playing field with the executive branch.
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    The potential future applications for an office like CORA are also noteworthy, and I would like to briefly mention two. First, I think that it is useful to try to quantify the annual cost of complying with Federal regulations. Under the so-called Stevens Amendment to the fiscal 1997 Treasury, Postal Services and General Government Appropriations Act (P.L. 104–208), Congress directed the Office of Management and Budget to undertake this task on a one-time basis. I think it would be useful to do this annual basis. As the repository of regulatory information for Congress, CORA would be ideally suited to take on this task.

    Second, regulatory reformers have consistently expressed the need for some type of regulatory accounting system or regulatory budget. As you know, under this type of system, a cap on compliance costs for each agency would be established. If an agency wanted to propose a new regulation that exceed the compliance cost cap, it would have to find an offset from existing regulations in order to pay for it. This would force agencies to determine regulatory priorities and would help control the size of regulatory burden. CORA would be an ideal office with which to help transition to this type of system.

    While I certainly believe that CORA would be a very useful office and is needed if Congress wants to effectively carry out its oversight responsibilities, there are some legitimate concerns and questions that have been raised about my proposal. I would like to take a moment to address a few of them.

    Some have wondered why a new office is needed and why CORA could not be placed in an existing office like the General Accounting Office or the Congressional Budget Office. First, CORA should not be considered an ''agency'', but rather an ''office'' that will be small, professional, and non-partisan. Second, even though today's fiscal environment discourages the creation of anything new, it is appropriate to have an office that assists in controlling something as large as the Federal regulatory burden - which is estimated to be as large as $700 billion annually. Third, by having a separate office, Congress is sending a clear message to the executive branch that there will be serious oversight of regulatory agencies and the decisions they make. Fourth, neither CBO nor GAO is particularly well-suited to perform regulatory analyses. It is a responsibility that they have undertaken on a limited bases not because they have any particular expertise in that field, but rather because there was no other place to assign that function. Finally, by creating a new office, we are streamlining and consolidating all regulatory functions within Congress under one roof. Such an approach is more efficient than the decentralized system that now exists.
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    Another concern that some of my colleagues have expressed with regard to an Office like CORA supplanting or somehow competing with the existing Committee structure in the House and Senate. I think these concerns are misplaced. I am not looking to establish anything that will replace the valuable work that our Committees currently perform. In fact, I would think that the existing Committees would view CORA as a way for them to facilitate whatever agenda they may wish to pursue. As evidence, I would again refer to the example of the Congressional Budget Office. If there were ever a Committee whose importance would be jeopardized by an independent, non-partisan office, it would be the Budget Committee with the existence of the Congressional Budget Office. However, history shows that CBO has not supplanted the Budget Committee. Rather, it has served as a source of information that the Budget Committee regularly uses to augment their important work.

    We cannot forget that regulations affect millions of people and billions of dollars, both of the taxpayer's money and in the private sector. The stakes in human and financial terms are very high. Adopting a regulation that is unnecessarily expensive or that is based on a faulty understanding of the underlying problem can cost significantly more than a better alternative, regardless of political or ideological differences of opinion. Spending a small amount of money to develop the best possible analysis of the potential impacts of a proposed regulation is a bargain when so many lives and so many dollars are in the balance. Remember, policy errors that often occur in regulations can be very expensive—information is a bargain by comparison. That is the point I am trying to stress, and that is why I think CORA is so important.

    Thank you for the opportunity to testify this morning. I look forward to working with you and the Committee in the months ahead.
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    Mr. GEKAS. I will ask the lady one question. The mechanism which she offers, the CORA, is that what it is called?

    Mrs. KELLY. Yes, sir.

    Mr. GEKAS. Is the establishment of a new bureau within the legislature, in effect; is that correct?

    Mrs. KELLY. Yes. It would be a separated, nonpolitical agency of its own.

    Mr. GEKAS. I wanted the lady to know that 5 or 6 months ago we in this subcommittee, my staff and I primarily, offered a proposition to the leadership, which is still pending and with which I want to acquaint you so that we can try and coordinate some efforts.

    If your effort would fall short, maybe a good fallback position would be the one that we offered. We have stated, in effect, that this subcommittee, the Subcommittee on Commercial and Administrative Law, is a perfect vehicle for a clearinghouse for each rule that might come under CRA, and that this subcommittee could act as a yes/no operative for the individuals who bring a CRA to fruition.

    This would require, with the massive regulations that are forthcoming and which we see on the record already, I believe, fleshing out our staff and our purview within this subcommittee, but we would have, under what I am describing to you, a built-in mechanism in the committee system already in place, which I find a little bit more pallatable than to establish the CORA as—I am not committed to quashing your idea, but I am saying to you that I want you to know that there are ideas out there for clearinghouse capacity within the halls of the Congress.
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    I know you would be willing to work with us to try to meld the two concepts; is that correct?

    Mrs. KELLY. I would be more than willing to work with you.

    There are two things that I want to point out here.

    Mr. GEKAS. Yes.

    Mrs. KELLY. One is the committee, no matter how hard it tries, is going to be subject to a political process, and CORA would not be.

    The other thing is CORA is an information-gathering device only. It is an information-gathering agency only, so that the committee would be able to take the information that CORA develops, and then your idea could take it to the committee—get that information and use it here at the committee level.

    The problem is these things are hitting us so fast. When you think from March of 1996 to now they have promulgated and imposed 5,800 regulations and 94 rules, I mean, that is a huge amount of stuff that is coming through these agencies, and I think that that is overwhelming to any one committee, no matter how high you flesh it out. It is just overwhelming. I think if there were a stand-alone office and able to pull in all the pieces from all the other agencies around, they could devote themselves to developing very good, solid information which you could then use.
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    Mr. GEKAS. But then once that worked and it is referred to the committee, wouldn't the same political considerations that you fear would attract themselves to the committee recur?

    In other words, if your CORA works, and they refer something to our committee, those political considerations which you fear would be in our original jurisdiction, wouldn't they come into play again as a result?

    Mrs. KELLY. With you as chairman, sir, I wouldn't think so.

    Mr. GEKAS. Then they wouldn't in the first instance either.

    Mrs. KELLY. My concern is——

    Mr. DELAHUNT. There is absolutely no political dynamic on this subcommittee.

    Mrs. KELLY. I am sorry.

    Mr. DELAHUNT. Excuse me, Mr. Chairman.

    Mr. GEKAS. I yield to you.

    Mr. DELAHUNT. Thank you, Mr. Chairman. There is absolutely no political dynamic on this particular subcommittee.
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    Mrs. KELLY. My concern is that I think that the regulations that are going on right now need to be—the whole development of information about these rules and regulations needs to be removed from the political process. That is what CORA is about. That is why I am interested in getting it removed from the executive branch and pressure that can be brought to bear there as well.

    Mr. GEKAS. The time of the Chair has expired.

    I would yield to the gentleman from Massachusetts for 5 minutes, and I do want to have a second round so that I can discuss some things with J.D. The gentleman from Massachusetts is recognized.

    Mr. DELAHUNT. Yes. I will be very brief, Mr. Chairman.

    Representative Kelly, have you done a cost estimate in terms of this CORA concept?

    Mrs. KELLY. At this point, we do not have a firm cost estimate. But we think that it is probably likely to match—I am trying to think—OIRA is probably the best model we could use. We are thinking about something that is a very small agency with a very small budget, and we think we know where it is going to be fairly easy to get that money.

    Mr. DELAHUNT. Thank you. I would address this both to you and to J.D., and I see the Ranking Member has arrived, so maybe I can leave for the Intellectual Property Subcommittee hearing.
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    But why hasn't the CRA worked? Why has there not been, as you point out, a single resolution filed for disapproval? J.D.?

    Mr. HAYWORTH. I thank my colleague for the question. You know, I would just say to the gentleman from Massachusetts, I believe that part of it has to do with mindset, because as you know right now, the whole nexus of the CRA is disapproval, saying no to something.

    Mr. DELAHUNT. But don't we, as Members of Congress, constantly hear from our constituents who are impacted by rules and regulations promulgated by Federal agencies?

    Mrs. KELLY. Will the gentleman yield?

    Mr. HAYWORTH. Gladly.

    Mrs. KELLY. The problem is we hear after the fact. The rules and regulations are promulgated, and then they hit the small businessmen, for instance, and all of a sudden we start hearing from our small business leaders, and they are in about their impact.

    Mr. DELAHUNT. I respect that. I respect that. But, again, Representative, we do have the obligation, I would submit, to take action when we do hear of a rule that is particularly burdensome, that does have a deleterious impact on small business or on individuals.
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    Mr. HAYWORTH. Well, I just think that the notion of the question proves our point. The CRA as it exists today is, first of all, somewhat of a novelty because it has just been enacted; but, secondly, as we have seen with many issues, including yesterday's cost of living adjustment or whatever, sometimes members quite candidly don't want an up or down vote. That's why the Hayworth Brownback bill is called the Congressional Responsibility Act, because it would necessitate every duly elected Member of Congress going on record up or down on a proposed regulation; approving regulations.

    Mr. DELAHUNT. But what you are saying in terms of the existing statute that was passed in the 104th Congress is that it is nugatory in terms of its impact and effect and that we ought to just eliminate it?

    Mr. HAYWORTH. What I am saying is, understanding while we try to be a society of laws instead of men, sometimes our ability to see in the future and the applicability of different things we have instituted has not really come to fruition because——

    Mr. DELAHUNT. But don't we, as Members of Congress, have the responsibility to act under the aegis of CRA to seek a resolution of disapproval for those particularly onerous and burdensome and potentially—and I will accept because I know you are a constitutional expert unconstitutional rules that would exceed or violate our Article I responsibilities? I mean, why hasn't it happened?

    Mr. HAYWORTH. That is a good question.
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    Mr. DELAHUNT. I mean, 18 months we have had it, and nothing has happened.

    Mr. HAYWORTH. I came not to defend the CRA, but to talk about the Congressional Responsibility Act.

    Mr. DELAHUNT. Would you join with me in decrying or denigrating the CRA?

    Mr. HAYWORTH. What I would join with the gentleman in doing is hopefully passing the Congressional Responsibility Act so that we can all go on record with an up or down vote on a myriad of regulations.

    Mr. DELAHUNT. Can I just make a suggestion? We did have an oversight hearing, as the chairman will remember, on the CRA itself, and I think the fact—and Representative Kelly, you are correct—the fact that there are 6,000 rules and regulations coming to this Congress doesn't provide for a rational, thoughtful way to approach this issue. One avenue that we might want to consider is to start to eliminate the vast majority of minor rules that involve such things as the raising of bridges and focus simply on the major rules that clearly do have an impact. That might address the problem that you both legitimately raise. That is just an observation.

    Thank you, Mr. Chairman.

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    Mrs. KELLY. But if I could just say that without the information, we won't—we don't know which ones are the ones that need to be—to be lauded or gotten rid of. We have to have the information.

    Mr. DELAHUNT. Again, I would——

    Mr. GEKAS. The time of the gentleman has expired.

    Mr. DELAHUNT. All right.

    Mr. GEKAS. We note the attendance of the gentleman from Tennessee, Mr. Bryant; and the gentleman from New York, the Ranking Minority Member, Mr. Nadler. We yield to the gentleman from Tennessee 5 minutes.

    Mr. BRYANT. Thank you, Mr. Chairman. And welcome to our fellow Representatives. How would both of your bills work? And I would just comment, before you answer, that I do support the concepts. I think they have potential, and I think, to some extent we are, shirking our responsibilities, eventhough the courts have long ago held constitutional the rights of the administrators to administrate. Although I agree with J.D., I think there is at least a moral imperative in the Constitution of the Congress to have a role in this, and I certainly like it being more on the front end, more along the lines of an ounce of prevention being worth a pound of cure.

    But again, I would be interested in having a little bit more detail. Practically, how would both of these work, given the massive numbers of rules and regulations?
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    Mrs. KELLY. With CORA, with that agency, you would have merely an information-gathering office for Members. It would simply be out there gathering the information, and we all know what the agencies are going to do—I mean, you can look in the Federal Register. You can check with what the agencies are doing, and basically you would have an agency there, a small agency, devoted to doing nothing but watching what is going on in all of the agencies and evaluating their regulations.

    Now, they can take information from all of the other agencies of the executive branch and use it. But it would be a nonpolitical agency available to Members of Congress for their use, and that is how it would be used.

    Mr. BRYANT. So it would make recommendations after-the-fact?

    Mrs. KELLY. That would still be Congress' job. CORA would simply help assess the impact of, for the most part, ''major'' rules. ''Major'' rules are those things which affect more than $100 million each, and we have got 94 new ones since 1994. We have 5,800 new regulations, which are just a little bit smaller in terms of the U.S. economy.

    Now, those are whoppers. And what we have to do, I think, is have a look at these major rules, especially with an office like CORA, in a nonpolitical way and develop information so that Congress can act on the rules if it chooses.

    It is very difficult to change on repeal a rule once it is in place. It is a lot easier to prevent it from going into place in the first place. And as we were talking with the chairman—as I was saying with the chairman, it could easily be a hand-in-glove relationship with this committee.
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    Mr. BRYANT. Would CORA come to Congress and say, well, this one looks bad, or this one is good; or does Congress have to go to them?

    Mrs. KELLY. It can do it either way.

    Mr. BRYANT. OK. J.D., in terms of the numbers, do we have the staff and people necessary to thoroughly review these things? I guess we are doing that already, aren't we?

    Mr. HAYWORTH. Well, in essence we do that already, but it comes after the fact. I think the important distinction with Hayworth-Brownback, as we propose it, is that we don't seek to circumvent or abridge regulatory agencies in their current existence. This is not taking a chain saw or a meat axe down the road and saying there is no reason for regulation.

    We understand certainly in our society that the impulses of Theodore Roosevelt at the outside of this century were well-founded. He wanted to bring experts into government, scientists to help us protect the food supply as our economy nationalized to make sure that drugs and cosmetics were safe. But like many good ideas, as we take a look here at the end of the century, we see the pendulum has swung to almost a supremacy of regulatory law, where there are those in American jurisprudence who believe that there is a primacy of—a body of regulatory precedent as opposed to the Constitution, and that is the tragedy we see here.

    So basically, Ed, what we are saying—or my colleague from Tennessee, is that the regulators will have their process. Then we will—we will examine these regulations in an expedited fashion. We will be able to monitor the procedures in public comment, but instead of having just a period of public comment and rules and regulations published pell-mell in the Federal Register, then we would vote up or down in expedited fashion, and the President's signature would be required. We would reinvent, if you will, what in essence happens. We would be approving what, in essence, is law.
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    And you know, while there is the challenge, and obviously that four-letter word ''time'' creeps into this equation, I just simply would note in our experience in first coming to Congress, and I think our colleagues on the other side were also here in the 104th Congress, we had many different votes, but on some occasions we would spend a good bit of time in suspension dealing with naming Federal installations after noteworthy Americans.

    I don't criticize that, but even the body that was arguably as overworked or as—certainly with as ambitious an agenda as we had in the 104th Congress, again in the 105th Congress, if we have got time to do that, don't we have time to live up to Article I, section 1?

    Mr. GEKAS. The time of the gentleman has expired. We now defer to the lady from Texas and yield to her 5 minutes.

    Ms. JACKSON LEE. I thank the chairman very much.

    Congressman Hayworth, you raise some very interesting concepts. Do you like the administrative process as it is—obviously not as it is structured, but do you like the administrative process as an element of government?

    Mr. HAYWORTH. Well, to my colleague from Texas, as I just mentioned in response to the gentleman from Tennessee, I believe, like many things, it was originally a fine concept. When Theodore Roosevelt, at the outset of this century, wanted to bring in experts, scientists, to deal with the challenges that emerging technologies and a nationalized economy brought to us, it was born of a noble impulse.
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    Here is the distinction I would draw. What we have done is the pendulum has swung to regulatory supremacy, if you will. I believe that as the scholars of the 21st Century, 100 years from now, look back at this time in American history they will write of a de facto fourth branch of government in the United States, the regulatory branch.

    Sadly, what we have had, with all due respect to my colleagues here, who, of course, are attorneys, we have had the rise not of experts in science and commerce regulating these things, we have had the rise of regulatory lawyers. Now, there are some who believe that that should be applauded, and that is well and good, but where I take issue is not the notion of regulation, because I think all of us understand that a modicum of regulation is, of course, needed in a highly complex society. The challenge I see, to my colleague from Texas and all of us that we confront, is the notion of runaway regulation and regulation that, worse, we wash our hands of in enacting ambiguous law that allows regulators to interpret.

    Ms. JACKSON LEE. I appreciate that. But let me provide you with this analysis in fact. First, I am sure you haven't heard that all of us who are regulatory lawyers or practicing are experts. I am sure that announcement has not come to you. We know science and technology and securities and et cetera. I just wanted to put that on the record, of course, the great body of talent.

    But would you not acknowledge, however, whatever side of the aisle we may be on, that there have been regulations promulgated under the Administrative Procedures Act and processes that have, in fact, helped our citizens, and the processes that they have moved through have benefited them?
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    As I read what might occur under this new legislation, you would require two bodies, both houses, to engage in this rulemaking, and the greatest difficulty that I have, because I do respect the three branches of government, you have made a good point, is there would be, if it is in the form of a statute, there would be no judicial review.

    Many of us have been victorious by challenging regulations and using the process of judicial review, and those have been people with means and without means.

    With that, let me just ask you a question, because I would like to ask Congressman Kelly a question. Would not this process literally shut down government because of the inertia, with all due respect to our colleagues and my admiration for the Senate and my admiration for the House, would have to be engaged in rulemaking?

    Mr. HAYWORTH. No. Quite the contrary, to my colleague from Texas. I believe it would necessitate a flurry of activity, and it would, with the time limits imposed, force both the House and the Senate to deal with issues of vital concern. And please understand, quite the contrary from trying to shut off a process or prevent judicial review or the proper interaction of the three branches of government, I believe, in essence, what we have done, quite unintentionally, is we have ceded lawmaking authority to regulatory agencies, and our job is to reassert our responsibilities so that those who sent us here can hold us accountable.

    Ms. JACKSON LEE. Thank you.

    Representative Kelly, I know your frustration with the review presently done by the General Accounting Office under the Congressional Review Act, and you think that OIRA is not doing its job, and you stated that they have only reviewed 460 rules, I think, in your testimony; is that correct?
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    Mrs. KELLY. Yes. Actually, they used to review many more. It has been cut down in recent years.

    Ms. JACKSON LEE. Would you think that CORA would really get in there and roll up its sleeves and actually do the review that Congress—I would ask for an additional 1 minute, Mr. Chairman?

    Mr. GEKAS. I grant the lady 45 seconds, but we want to keep within the balance.

    Mrs. KELLY. I will make any answer fast. Yes.

    Ms. JACKSON LEE. As I look at this process, I note that it would cost some $570,000 to do an analysis. I think there was a figure of $5 million that you thought it might cost. But if we determine out of, I think, the CBO report that it would be $570,000, multiplied by, say, 100 regulations, that would be an enormous amount of money. How would you respond to that?

    Mrs. KELLY. Well, I would question the CBO's figures. I don't know where they got them, and I haven't seen them, so I am not in a position to really testify about them.

    Mr. GEKAS. The time of the gentlelady has expired.

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    Ms. JACKSON LEE. I thank the gentlelady for her comments.

    Thank you, Mr. Chairman.

    Ms. GEKAS. I would now recognize the Ranking Minority Member, the gentleman from New York, Mr. Nadler, for a period of 5 minutes.

    Mr. NADLER. Thank you.

    Let me ask, Congressman Hayworth, under your bill we could move regulations under an expedited procedure through the House in an hour and 15 minutes, right; an hour for debate and 15 minutes for the vote?

    Mr. HAYWORTH. That is correct.

    Mr. NADLER. Do you know how many major and significant rules there were last year?

    Mr. HAYWORTH. I am not here with an empirical study, but I can tell you that I have seen that the Federal Register has grown exponentially, sir.

    Mr. NADLER. Well, let me just tell you, last year there were 79 major rules and more than 2,000 significant rules, so about 2,100 major and significant rules. There were, in fact, 4,963 final rule documents in the Federal Register.

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    Do you know how many hours Congress was in session last year?

    Mr. HAYWORTH. Please enlighten, sir. I trust you have the numbers.

    Mr. NADLER. Congress was in session last year 919 hours.

    So assuming every rule went through an expedited procedure, just the significant and major ones, you are talking about 2,100 times one and a quarter, so it is about 2,800 hours, or three times as much time as we were in session last year, simply to consider the major and significant rules, never mind the workaday ones, under an expedited procedure.

    Do you think this is practical?

    Mr. HAYWORTH. Sir, I think it is always practical to adhere to Article I, section 1 of our Constitution, and I believe by form and function what actually happens here is that, of course, in the realm of human endeavor to say, for instance, that all of the rules that were promulgated would therefore come before the Congress, that that sheer volume would, in fact, be——

    Mr. NADLER. But that is what your bill mandates, that every rule that is promulgated come before the Congress.

    Mr. HAYWORTH. Well, certainly.

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    Mr. NADLER. So if every rule that is promulgated came before the Congress—never mind all the regular rules, just the major and significant rules, of which there were 2,100 last year, if they all came before the Congress just for an expedited procedure that would require minimally three times as much time as we were in session last year.

    Now, please—spare us the rhetoric about how we have the time to do what we have to do. How do we fit in 2,800 additional hours when last year we were in session 900 hours?

    Mr. GEKAS. With fewer motions to adjourn.

    Mr. NADLER. Well, we didn't have a lot last year. I am asking a serious question, please.

    Mr. HAYWORTH. And I appreciate the seriousness of the question, but the crux of the dilemma is this—and I appreciate your extrapolations on numbers—the fact is that we have rejected or we have turned our back as an institution on our constitutional responsibilities.

    And I appreciate my colleague from New York offering his notion of time and his estimates on how long it would take to do this.

    Mr. NADLER. Excuse me, sir. They are not estimates. They are assuming the least possible time under your bill and simply taking the number of significant and major rules that were done last year. They are not extrapolations. They are not estimates. That is the least possible. They only make two assumptions; one, that everything goes as fast as it could—as legally it could under your bill, not a minute wasted, and, two, that there were—there would be the same number of significant and major rules as there were last year.
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    We also have a constitutional responsibility to do 13 appropriations bills every year. I understand the constitutional responsibility, but you are suggesting a specific way to discharge it. What I am telling you is that that specific way that you are suggesting, assuming the least possible time and the same number of rules as last year, would take up 2,800 hours.

    Now my question is how could that be done?

    Mr. HAYWORTH. First of all, you are assuming that all the time would be taken. Your conclusions are based on the maximum amount of time used, number one. Number two, if the gentleman is suggesting that we sacrifice the Constitution for convenience, that certainly is his right. I think that is a very dangerous precedent and one that this Congress has done far too often.

    Mr. NADLER. Reclaiming my time.

    Mr. HAYWORTH. Certainly.

    Mr. NADLER. I am not suggesting we sacrifice the Constitution, and the courts have said what we do now is constitutional. What you are suggesting is a specific different way, in your opinion a better way, of discharging our constitutional responsibility than what we do now. And I am asking about the practicality of that supposedly or allegedly—or assertedly better way.

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    Now, do you think we can deal with a major and significant rule in less than an hour? I mean, we are talking about an hour, that is it.

    Mr. HAYWORTH. I would simply point out in the history of the first 150 years of our constitutional republic, we did exactly that. We did it.

    Mr. NADLER. The first 150 years we didn't have the kind of society we have now.

    I am asking a very practical question about the world we live in today. Would you tell me—do you think that we would cut down the number of major rules from 2,800 to 300? I mean, are you saying that by this regulatory scheme that you are coming up with—I don't mean to use that word pejoratively, but this regulatory plan that you are coming up with, do you mean to force the number of resolutions issued each year to be cut by three-quarters? And if so, say so.

    Mr. HAYWORTH. Well, what I believe would happen, to my colleague from New York, is that it would also force the Congress to write more specific law; to stem that to begin with.

    Mr. GEKAS. The time of the gentleman has expired.

    I might say, just for emphasis, that unanimous consent disposes of a lot of different subjects on the floor on a regular basis.

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    At any rate, we now thank our colleagues for their appearance and their testimony, and we hope to work with both of them in the various functions that this committee is exercising in this very important realm of legislative activity. Thank you very much.

    Mrs. KELLY. Thank you.

    Mr. HAYWORTH. Thank you very much.

    Mr. GEKAS. We would ask the witnesses in the second panel to approach the table. Professor Marci Hamilton teaches at Benjamin N. Cardozo School of Law, Yeshiva University. She is currently enjoying a sabbatical as a visiting scholar at the Princeton Theological Seminary and is a fellow at the Center of Theological Inquiry in Princeton, New Jersey.

    Professor Hamilton attended Vanderbilt University as an undergraduate, received two master's degrees from Penn State, and graduated magna cum laude from the University of Pennsylvania Law School. She clerked for Judge Edward Becker on the United States Court of Appeals for the Third Circuit and for Justice Sandra Day O'Connor.

    Craig Brightup is the Director of Governmental Relations for the National Roofing Contractors Association. He opened their Washington office in January of 1990. Previously he was head of congressional relations for the Federal Trade Commission. He was with the U.S. Chamber of Commerce in both Dallas and Washington and now serves on its labor relations and regulatory affairs committees. He began his career in 1976 with the Federal Election Commission, after graduating from Penn State University.
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    Todd Robins is staff attorney with the U.S. Public Interest Research Group. His organization characterizes itself as a citizen-based, nonprofit, nonpartisan environmental and consumer watchdog group. Since June 1996, Mr. Robins has lobbied, advocated, conducted, researched and helped coordinate field organizing campaigns on a variety of issues. He earned his juris doctor degree in May 1996 from Boalt Hall School of Law at the University of California at Berkeley. He earned a BA from Princeton University in 1990.

    We will begin the testimony in the order in which we offered the introductions. So Professor Hamilton, you have the first shot. We yield 5 minutes to you. We tell you in advance, as we tell the other two witnesses, that their written statements will become a part of the record automatically without objection so that you can feel free to summarize within that 5 minutes the testimony that you wish to offer.

    Mr. NADLER. Mr. Chairman.

    Mr. GEKAS. The Chair recognizes the gentleman from New York.

    Mr. NADLER. Thank you. I just want to extend a special welcome to Professor Hamilton, who teaches at Cardozo Law School, which is in my district, and with whom we had an interesting dialogue, I don't know, maybe a year ago, about the Religious Freedom Restoration Act before Professor Hamilton argued what was, from my point of view unfortunately, the winning side in front of the United States Supreme Court.

    Ms. HAMILTON. Thank you.
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    Mr. GEKAS. We thank the gentleman.

    Mr. GEKAS. We will proceed with Professor Hamilton.

STATEMENTS OF MARCI A. HAMILTON, PROFESSOR OF LAW, BENJAMIN N. CARDOZO SCHOOL OF LAW, YESHIVA UNIVERSITY

    Ms. HAMILTON. Thank you, Mr. Chairman, for asking me to testify today on the constitutional aspects of legislative responsibility and the doctrine of nondelegation. I commend the subcommittee for this extraordinarily important and crucial issue.

    I am only going to make three points orally and will refer you to my written testimony for more detail.

    First, we are here today because there is increasing agreement that the administrative or the bureaucratic state has gotten out of control. Some have tried to say that this is inevitable—I think we heard some of that on the first panel—or that the Constitution does not even speak to the issue. I am here to say that the Constitution speaks directly to this issue.

    The Constitution was designed by the framers for the purpose of avoiding a bureaucratic and unaccountable state that does not speak to or for the people. The focus of the debates at the Convention was on how to form a strong national government which could respect the limits placed on its powers. One of the most important hedges against overreaching is the doctrine of the separation of powers, which requires each of the Federal branches to perform distinctive tasks, and that is the issue before this committee today.
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    The question is whether or not Congress is engaging in its constitutional obligation to make the law. It is the executive's obligation to enforce the law. Current practice has turned those distinctions into shadows that now merely suggest those distinctions.

    My second point, and this is a point that I am currently writing a book about and is something that has been of interest to me since I began as a law professor, and that is that the framers chose to make representatives at the Federal level and the State level independent decisionmakers. They are not under the control of the people during their term of representation. Rather, they carry an extraordinarily heavy burden to make the right decisions. But what comes with that responsibility is the fact that they must make those decisions. The current bureaucratic state undermines the framers' intentional and carefully conceived structure that places Representatives in the position of independent decision-making authority.

    Whether the people want Representatives to do something or not, the fact is that the framers believed Representatives should use their judgment and do the right thing in every circumstance. What has happened is that difficult policy choices have been shunted off to the executive branch, and it is now acting in the role that the framers clearly gave to the Representatives.

    Thus, Federal legislators have real power. They have heavy responsibility under the Constitution, and they have a concomitant obligation to communicate with the people. All three of those constitutional requirements are undermined by the current practice of delegation.

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    My final point today is that the Supreme Court has recognized that the Constitution requires Congress to exercise this independent decision-making responsibility, but it has not enforced the doctrine with vigor. Congress bears equal responsibility to ensure that it conducts its own business in a constitutional manner, and the now widespread practice of delegation of the hard policy choices betrays the framers' constitutional design. So whether or not the Supreme Court has been able to enforce is not the issue.

    Let me finally make one quick point about feasibility. I have heard today, and I have heard frequently when I have discussed this act with people, that massive delegation has led to a huge number of regulations, and Congress could never take back its responsibility. I think if you looked across the street at the nine Justices reviewing 7,000 certiorari petitions a year, you would learn that, in fact, you can take on this responsibility.

    Once a full, annual round of regulations has been examined, it should become quite easy for any Member of Congress to identify the relatively few that deserve careful and slower scrutiny and the many that simply can be passed by rather expedited measures.

    Thank you.

    Mr. GEKAS. We thank the professor.

    [The prepared statement of Ms. Hamilton follows:]

PREPARED STATEMENT OF MARCI A. HAMILTON, PROFESSOR OF LAW, BENJAMIN N. CARDOZO SCHOOL OF LAW, YESHIVA UNIVERSITY
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    Thank you, Mr. Chairman, for asking me to testify today
on the constitutional aspects of legislative responsibility and the doctrine of nondelegation. I commend the Subcommittee for taking up this timely and crucial issue.

    Some have asked—quite fairly—what could the Constitution have to say about the state of legislative practice today? The current administrative state, after all, is a result of the New Deal. One might think that this is a contemporary problem unimagined by the colonial generation and the constitutional framers. That is not so.

    At the Constitutional Convention, the Framers, who were highly educated and deeply thoughtful, consciously set themselves to craft a new form of civil government that would resist tyranny. They understood their task to be two-fold: craft a strong national government that would cure the weaknesses of the country under the Articles of Confederation and find as many effective means as possible to place meaningful limits on the power assigned.

    The Constitution was designed for the purpose of avoiding a bureaucratic, unaccountable state. The focus of the Debates at the Constitutional Convention was on how to form a strong national government that would respect the limits placed on its powers.

    One of the most important constitutional hedges against overreaching is the doctrine of separation of powers, which requires each of the federal branches to perform distinctive tasks and to respect the constitutionally assigned role of the other branches. The Framers assigned Congress, the federal branch closest to the people, the power and responsibility to make the law. To the President, they assigned the authority to enforce the law. Those distinctions have become shadows merely suggesting distinctions as the administrative state has expanded.
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    Although the Framers firmly believed that legislators were capable of acting in the best interests of the country, they also recognized the temptation of governors to aggrandize their own powers to the detriment of the people. The Framers chose two principal means by which to ensure that the federal government would not become a means of tyranny: First, they decentralized power and distributed it throughout a complex structure which channeled power into three federal branches with distinct powers and into the individual states. To quote one of the framers of the Declaration of Independence, John Witherspoon, a Presbyterian minister, and President of what is now Princeton University, and mentor to James Madison and James Wilson: Every good form of government should be ''complex, so that one principle may check the other . . .''

    Two eighteenth-century metaphors nicely capture the checks and balances system chosen by the Framers: one is of a watch, with its cogs working independently but enmeshed; the other is of the planets, each with its own path to follow but held together in the solar system by mutual gravitational forces.

    Second, in the second phase of the Constitution's drafting, an explicit Bill of Rights was added to provide explicit protection of recognized spheres of liberty: for example, religion, speech, the press, and the home.

    Today, we are discussing the first tack chosen by the Framers in crafting a scheme to avoid tyranny: the designation of certain branches with particular and limited powers. Art. I, sec. 1 of the Constitution provides:

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  All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

In Art. I, sec. 8, the Constitution provides a list of ''powers,'' which includes collecting taxes, regulating commerce, coining money, protecting intellectual property, declaring war and raising armies.

    The Framers had a vision of the constitutionally appropriate legislator acting upon these powers. He would be a trustee of the people with independent authority to make decisions to govern the nation. See Marci A. Hamilton, Discussion and Decisions: A Proposal to Replace the Myth of Self–Rule with an Attorneyship Model of Representation, 69 N.Y.U. L. Rev. 477, 523–44 (1994). A trustee is obliged to exercise independent judgment on behalf of those he serves.

    The Framers believed that a representative has a fiduciary duty to engage in independent-minded decisionmaking crafted to best serve the people. David Schoenbrod, in his book Power Without Responsibility: How Congress Abuses the People Through Delegation, cogently argues that representatives have a constitutional obligation to make ''the hard policy choices'' for the people.

    The important message I bring here today is that the Framers intended for the members of the House and the Senate to have and to exercise independent power to make the hard policy choices for the nation, and a failure to do so violates the constitutional scheme. The American experiment in democracy is not an example of direct democracy in which the people actually make the governing decisions. That model was explicitly rejected by the Framers as unworkable. Instead, they chose a system of representation which charges representatives with the obligation of exercising their independent judgment.
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    Framer James Wilson, who deserves much of the credit for the representative scheme in the Constitution, is reported to have explained the representative's role as follows:

  Mr. Wilson could not approve of the Section as it stood, and could not give up his judgment to any supposed objections that might arise among the people. He considered himself as acting & responsible for the welfare of millions not immediately represented in this House. He had also asked himself the serious question what he should say to his constituents in case they should call upon him to tell them why he sacrificed his own Judgment in a case where they authorized him to exercise it? Were he to own to them that he sacrificed it in order to flatter their prejudices, he should dread the restore: did you suppose the people of Penn[sylvania] had not good sense enough to receive a good Government?

2 James Madison, The Debates in the Federal Convention of 1787 Which Framed the Constitution of the United States of America 399 (Gaillard Hunt & James B. Scott eds., Prometheus Books 1987) (1920).

    It is an indelible feature of the constitutional scheme that legislation is constitutionally legitimate even if it does not reflect the popular will. That feature affords legislators the latitude necessary to make the best decisions, the right decisions. To some extent, the people can hold legislators accountable if they seek reelection. For those representatives who do not, the people have little control over them during the term of representation. The Constitution builds in two features that are intended to keep representatives accountable even though they hold power that is independent of the people: enumerated lawmaking responsibility, which is subject to judicial review, coupled with two-way communication with the people, which is effected through the First Amendment's speech and press clauses. Delegation disserves both constitutional responsibilities.
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    The problem we face today is that Congress increasingly has abdicated its constitutionally designated job of making the hard policy choices. Rather than subjecting itself to the political heat of crafting the ruling law, it has increasingly permitted itself to declare broad policy goals in its legislation and to delegate the difficult decisionmaking to unelected officials of the executive or the judiciary branch.

    The Constitution's structure, language, and history forbid legislative delegation of policy decisions. The nondelegation principle is an important and central constitutional norm which is necessary if representatives are to be held accountable and the government made to work like clockwork, or to revolve like the solar system.

    Although the Supreme Court consistently has espoused the constitutional importance of the nondelegation principle, it has not held a clear or a strong line on delegation. Indeed, some have Statement of Professor Marci Hamilton claimed that the Court has never invalidated a statute on delegation grounds. But that is an exaggeration. There are at least two important cases where the Court did so: One is A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), and the other is Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), both decided in 1935. In both cases, Congress handed the policy choices directly to the President, providing only the broadest directions. Schechter Poultry at 542; Panama Refining at 415.

    Since those two cases, the Supreme Court has taken a more deferential stance toward congressional delegation, though it has never overruled Schechter Poultry or Panama Refining, and it has continued to affirm the importance of the nondelegation norm. In the Court's recent delegation case, Loving v. U.S., the Court stated:
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  Another strand of our separation-of-powers jurisprudence, the delegation doctrine, has developed to prevent Congress from forsaking its duties. . . . The fundamental precept of the delegation doctrine is that the lawmaking function belongs to Congress, U.S. Const., Art. I, §1, and may not be conveyed to another branch or entity. Field v. Clark, 143 U.S. 649, 692, 12 S.Ct. 495, 504, 36 L.Ed. 294 (1892).

Loving v. U.S., 116 S. Ct. 1737, 1744 (1996). This reaffirmation of the constitutional principle sends an important message to members of Congress at a time when delegation has resulted in a steady erosion of public confidence in the legislative branch; increasing numbers of scholarly works calling for forms of popular self-rule to trump legislative decisionmaking; and a pervasive belief that the problem cannot be fixed, in other words, apathy. Each of these threatens the integrity of the constitutional order, and the capacity for the Constitution to do that which its eighteenth century drafters believed to be its central mission: to ensure liberty through a smoothly operating, antiauthoritarian, accountable governmental system.

    In the American constitutional scheme, the people delegate significant power to legislators to make the decisions that run the country. And we do so for deeply pragmatic reasons: if representatives carry out their duties as trustees of public decisionmaking, the country will thrive as other citizens can pursue careers and avocations that contribute to the polity in other ways. We can have full-time doctors, street sweepers, and chefs. Legislators open the way to freedom for all of us.

    Yet, we should be willing only to relinquish the real power given to members of Congress if they are shouldering the burdens that then free us to live our lives secure in the fact that the country is being run smoothly and appropriately. The widespread practice of delegation threatens our pursuit of ''ordered liberty.''
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    The Supreme Court is not the only branch of the federal government that has responsibility for carrying forth the requirements of the Constitution. As a coordinate branch in the constitutional scheme, Congress bears equal responsibility to ensure that it conducts its business in a constitutional manner. Indeed, as the Supreme Court recently stated, Congress ''has not just the right but the duty to make its own informed judgment on the meaning and force of the Constitution.'' Boerne v. Flores, 117 S. Ct. 2157, 2171 (1997).

    Congress must clean its own constitutional house. Congress has tried to take personal responsibility before, but chose a scheme that appeared to the Court to undermine the constitutional power of the President to veto legislation. In the early 1980's Congress attempted to solve its delegation problem by delegating authority to the executive and then retaining a ''right to veto'' what the executive decided. INS v. Chadha, 462 U.S. 919, 921–22 (1983). The Supreme Court declared this an attempt to make an end run around the President's unilateral, constitutional power to veto legislation. Id. at 958–59.

    The time has come to take a different tack to restore the constitutional order. The proposals brought today could transform the entrenched and constitutionally suspect practice of executive lawmaking into one of responsible legislative lawmaking.

    To the extent Congress re-embraces its constitutional responsibility to make the hard policy choices, the constitutional order can be reinstated. Congress could return to the role designated by the Framers. It would be on the front lines for the decisions that affect citizens and the country, thereby giving the people more leverage, more information, and more power. Federal law could lose its Wizard of Oz quality and become a product of accountable, independent trustees.
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    Conclusion: We reasonably look back to the Framers to understand our constitutional structure. Two hundred years from now, who will be looking back at us to judge what we have made of this constitutionally constructed government? Will the American constitutional system appear like the tyrannical systems the Framers attempted to avoid, or will it look like the ideal government envisioned by the Framers: a government of liberty and efficiency, running like clockwork, with its various cogs acting independently but turning in tandem with the others so that the whole can produce a unified and productive result? The proposals before the Committee today hold promise for moving us closer to the Framers' original vision.

INSERT OFFSET RING FOLIOS 18 TO 33 HERE

    Mr. GEKAS. We will have to recess until 11:45. We ask the witnesses if they would hold still, as I am wont to say, and we will be back presently. This committee stands in recess until quarter of 12:00.

    [Recess.]

    Mr. GEKAS. The time of the recess having expired, the subcommittee will come to order. I will seize on the opportunity in that we can't proceed without another Member just to ask Professor Hamilton one question. The legislative veto which was struck down by the Supreme Court was a harbinger of how little the Congress can do in the regulatory reform that we all sought.

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    How do you blend that in with the proposals that we have at hand?

    Ms. HAMILTON. Well, the difference between the veto idea and the Congressional Responsibility Act is huge, because the exercise of veto of places Congress in the position of exercising power the executive branch's power. Under the Congressional Responsibility Act, Congress is taking back its constitutionally-designated job.

    I have looked at this bill now for over a year from every side. I can't imagine it would fail constitutional muster on any ground. It does not have a Chadha problem in it.

    The CRA might have a Chadha problem, and it might be worthwhile to be proceeding on this with the understanding that it might present some problems.

    Mr. GEKAS. When we had hearings on this 2 years ago, I suppose, we were assured that it passed constitutional muster. Has that—that has not——

    Ms. HAMILTON. We have a lively Supreme Court, shall we say, that is increasingly monitoring the boundaries of Congressional and executive power. With Justice Breyer now on the Court, I think that the CRA might be a problem. But the Congressional Responsibility Act doesn't present the same procedure.

    Mr. GEKAS. I thank the professor.

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    Mr. GEKAS. We note the presence of a hearing quorum, and we will proceed with the next witness, Mr. Brightup.

STATEMENT OF CRAIG BRIGHTUP, DIRECTOR OF GOVERNMENTAL RELATIONS, NATIONAL ROOFING CONTRACTORS ASSOCIATION

    Mr. BRIGHTUP. Thank you, Mr. Chairman.

    Chairman Gekas and Members of the subcommittee, my name is Craig Brightup, and I am the Director of Government Relations for the National Roofing Contractors Association. Our home office is located in Rosemont, Illinois, right outside of Chicago, and I opened its Washington office in January of 1990.

    Regulatory reform is a priority for NRCA, and we thank you very much and the committee, the subcommittee, for holding this hearing, because we have heard from our members for the last 8 years that they are simply unable to cope with the volume of Federal regulations that they are required to understand and be in compliance with. NRCA members were delegates to the 1995 White House Conference on Small Business, and I currently sit on the Regulatory Affairs Committee of the U.S. Chamber of Commerce. I thank the Chair for putting my written statement in the record, and I will summarize my comments beginning on the bottom of page 3 of my written statement.

    The legislative and regulatory sequence, in my opinion, is much like the flow of a river. Legislation is passed by Congress upstream in the sequence, and by the time it ends up downstream via the administrative rulemaking process, it is a larger river in volume. It is carrying more water.
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    The Center for the Study of American Business at Washington University estimates that the private sector pays $600 billion to $700 billion annually to comply with Federal regulations. Executive order 12866 has required OMB to do its own estimates, but it took the Stevens Regulatory Accounting amendment, added to the Omnibus Appropriations Act of 1996, by Senator Ted Stevens to get OMB moving.

    OMB's first regulatory accounting statement is due to Congress by September 30th, but OMB's draft report estimates that annual costs and benefits of major regulations are about equal, at $300 billion.

    In July, the Senate passed the fiscal year 1998 Treasury appropriations bill with an extension of the OMB regulatory accounting statement for 1 more year. An identical provision is contained in the House bill, H.R. 2378. We support making this permanent and expanding it to include the total annual cost of all Federal regulatory programs.

    An annual regulatory accounting statement could lead to regulatory budgeting, which would be a good thing, but once again, we are dealing with calculating the regulatory burden downstream.

    Clyde Wayne Crews from the Competitive Enterprise Institute had this to say in creating a regulatory report card: OMB can do only so much on its own. Since Congress itself is the source of overregulation, it must become the target of regulatory reform. True regulatory reform must institute congressional accountability and end regulation without representation rather than denounce derivative agencies or scold OMB for failing to properly audit the regulatory state. The Congressional Review Act of 1996, CRA, was an important concession to this principle.
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    We are pleased to support H.R. 1704, Mrs. Kelly's bill, the Congressional Office of Regulatory Analysis Creation Act, CORA. It would strengthen the Congressional Review Act, CRA, which, by the way, as you know, is a subtitle of SBREFA.

    CRA established expedited procedures for Congress to pass a joint resolution of disapproval for any new rule. Agencies must now submit final rules and brief reports to GAO and each house of Congress, and the GAO must also submit additional reports to Congress for rules that are deemed major.

    A GAO report for a major rule concerns agency compliance with procedures, but CORA would add more qualitative information by providing a regulatory impact analysis done independently of an agency. As such, CORA would help Congress implement the CRA by providing more useful data for rules of consequence. It would also give Congress more resources upstream in the legislative regulatory sequence by performing analysis now done by CBO, thus fortifying the Unfunded Mandates Reform Act.

    CORA's new Congressional Office of Regulatory Analysis would be well situated to perform CBO's estimates of regulatory costs or legislative proposals and would be funded as a legislative support office through reallocating spending currently dedicated to the GAO.

    By the way, I would like to add that CORA would also fit in well with a proposal called the Mandates Information Act, H.R. 1010, which would apply the same kind of consideration to private sector mandates.
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    The thrust of these proposals enjoys surprisingly broad support. We heard about Supreme Court Justice Breyer's writings.

    The increasing demand for congressional accountability concerning administrative rulemaking is expressed in the final sentence of the lead editorial from the August 26th, 1997 Washington Post, which states: No more passing big bills and blaming the bureaucracy for the rules to which the bills necessarily give rise. Political accountability and regulatory legitimacy would both be enhanced.

    That concludes my remarks. I would be glad to answer any questions.

    [The prepared statement of Mr. Brightup follows:]

PREPARED STATEMENT OF CRAIG S. BRIGHTUP, DIRECTOR OF GOVERNMENTAL RELATIONS, NATIONAL ROOFING CONTRACTORS ASSOCIATION

    Chairman Gekas and members of the Subcommittee, my name is Craig Brightup and I am the Director of Government Relations (and Associate Executive Director) for the National Roofing Contractors Association (NRCA). NRCA's home office is located in Rosemont, Illinois, and I opened its Washington Office in January of 1990.

    Regulatory reform is a priority for NRCA, because we have heard from our members for the last eight years that they are simply unable to cope with the volume of federal regulations that they are required to understand and be in compliance with. NRCA members were delegates to the 1995 White House Conference on Small Business and I currently sit on the Regulatory Affairs Committee of the U.S. Chamber of Commerce.
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    NRCA advocated judicial review for the Regulatory Flexibility Act and is grateful that it was part of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA). Restoring small business input in the regulatory process is crucial, particularly when considering the Unified Agenda of Federal Regulations now stands at four volumes and contains approximately 5,000 rules and regulations pending in the bureaucratic pipeline.

    But SBREFA and the Unfunded Mandates Reform Act of 1995 alone will not stop the avalanche of regulations that plague America. We applaud the Subcommittee for this hearing on the role of Congress in the administrative rulemaking process and legislation that it is now considering to further the cause of congressional accountability.

    NRCA is an association of roofing, roof deck and waterproofing contractors. Founded in 1886, it is one of the oldest associations in the construction industry and has over 4,000 members represented in all 50 states. NRCA contractors are small, privately held companies and the average NRCA member employs 35 people in peak season, with sales of just over $3 million per year.

SO YOU WANT TO GET YOUR ROOF FIXED . . .

    In 1990, NRCA opened its Washington Office due in part to the barrage of regulations that roofing contractors had to contend with on a daily basis. Such regulations included the asbestos regulations from the Environmental Protection Agency (EPA) and the Occupational Safety and Health Administration (OSHA), which caused a negative impact on a significant number of contractors. Adding to these problems were Department of Transportation regulations requiring costly engineering controls for roofing kettles and tankers (Elevated Temperature Materials Rule), as well as commercial drivers' licenses and a myriad of paperwork for driving to and from job sites (Federal Motor Carrier Safety Regulations).
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    Layers of regulations such as the paperwork-intensive Hazard Communication Standard (from OSHA) compelled NRCA's then-president, Richard Rosenow, to write an article describing regulations for fixing a neighbor's garage roof. On February 4, 1992, Mr. Rosenow's ''So You Want To Get Your Roof Fixed . . .,'' ran in The Wall Street Journal and a copy is attached.

    NRCA's review of these regulations and others in the pipeline indicated that perhaps the most frequent boilerplate in the Federal Register was, ''Pursuant to the Regulatory Flexibility Act, this federal agency [e.g., EPA] has concluded that the regulation will not have a significant impact on a substantial number of small entities.'' It was then that NRCA became a steering committee member of the Regulatory Flexibility Act Coalition working for ''Reg Flex'' judicial review.

    In 1994, the House Republican Research Committee's Task Force on Competitiveness held a press conference focusing on overregulation of the roofing industry, where the attached copy of NRCA's Top Ten Favorite Roofing Regs was made available. And in 1995, OSHA's dubious Fall Protection Standard, with its burdensome work practices at heights above six feet, caused such universal disdain from roofing workers and employers alike that it was the subject of a segment on CNN Headline News.

    Thanks in part to congressional action on this issue, OSHA modified enforcement of the standard to the relief of the construction industry. Unfortunately, OSHA undertook this corrective step only after finalizing the standard and creating much economic disruption. In this case, congressional intervention was necessary to fix the problem.
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UPSTREAM/DOWNSTREAM

    The legislative and regulatory sequence is much like the flow of a river. Legislation is passed by Congress ''upstream'' in the sequence, and by the time it ends up ''downstream'' via the administrative rulemaking process, it is larger in volume. The Center for the Study of American Business (CSAB), at Washington University, in St. Louis, and other knowledgeable organizations estimate that the private sector pays $600–700 billion annually to comply with federal regulations.

    Executive Order 12866 has required the Office of Management and Budget (OMB) to do its own estimates, but it took the Stevens Regulatory Accounting Amendment (by Senator Ted Stevens to the Omnibus Appropriations Act of 1996) to get OMB moving. OMB's first regulatory accounting statement is due to Congress on September 30, with a draft report estimating that the costs and benefits of major regulations were equal, at $300 billion.

    In July, the Senate passed the fiscal year 1998 Treasury appropriations bill with an extension of the OMB regulatory accounting statement for one more year, and an identical provision is contained in the House bill (H.R. 2378). NRCA supports making this permanent and expanding it to include the total annual costs of all federal regulatory programs.

    An annual regulatory accounting statement could lead to regulatory budgeting, which would be a good thing, but once again we're dealing with calculating the regulatory burden ''downstream.'' As Clyde Wayne Crews Jr., Competitive Enterprise Institute, stated in Creating a Regulatory Report Card (September 1997):
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  OMB can do only so much on its own. Since Congress itself is the source of overregulation, it must become the target of regulatory reform—just as Congress is the target of popular proposals like term limits, committee reform, and other reforms aimed at reining in power. True regulatory reform must institute congressional accountability and end ''regulation without representation'' rather than denounce derivative agencies or scold OMB for failing to properly ''audit'' the regulatory state. The Congressional Review Act of 1996 . . . was an important concession to this principle.

CORA, CONGRESSIONAL RESPONSIBILITY, AND MANDATES INFORMATION

    NRCA is pleased to support H.R. 1704, the Congressional Office of Regulatory Analysis Creation Act (CORA). It would strengthen the Congressional Review Act (CRA), which is a subtitle of SBREFA.

    The CRA established expedited procedures for Congress to pass a joint resolution of disapproval for any new rule. Agencies must now submit final rules and brief reports to the General Accounting Office (GAO) and each house of Congress, and the GAO must also submit separate reports to Congress for rules deemed ''major.'' [In a twist, the Congressional Responsibility Act, H.R. 1036, would require Congress to vote on every proposed rule or regulation in an expedited manner, unless a majority of Members voted to send it through the normal legislative process.]

    A GAO report for a major rule concerns agency compliance with procedures, but CORA would add more qualitative information by providing a ''regulatory impact analysis'' done independently of an agency. As such, CORA would help Congress implement the CRA by providing more useful data for rules of consequence. CORA, therefore, would give Congress more leverage over regulations already ''downstream'' (ready to go into effect).
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    CORA would also give Congress more resources ''upstream'' in the legislative/regulatory sequence by performing analysis now done by the Congressional Budget Office (CBO), thus fortifying the Unfunded Mandates Reform Act. The new Congressional Office of Regulatory Analysis would be well situated to perform the CBO's estimates of regulatory costs for legislative proposals, and would be funded as a legislative support office though a reallocation of spending currently dedicated to the GAO.

    CORA would also fit in well with H.R. 1010, the Mandates Information Act of 1997. The Unfunded Mandates Reform Act essentially concerns federal mandates imposed on state and local governments, and the Mandates Information Act would extend equal congressional consideration under the law to mandates imposed on the private-sector.

    The thrust of these proposals enjoys surprisingly broad support. The increasing demand for congressional accountability concerning administrative rulemaking is expressed in the final sentence of the lead editorial from the August 26, 1997 Washington Post, which states:

  No more passing big bills, then blaming the bureaucracy for the rules to which the bills necessarily give rise. Political accountability and regulatory legitimacy would both be enhanced.(see footnote 1)

INSERT OFFSET RING FOLIOS 34 TO 36 HERE

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    Mr. GEKAS. The time of the gentleman has expired.

    We thank the witness, and we turn to Mr. Robins.

STATEMENT OF TODD E. ROBINS, ATTORNEY, U.S. PUBLIC INTEREST RESEARCH GROUP

    Mr. ROBINS. Thank you, Chairman.

    Good afternoon. My name is Todd Robins. I am an attorney with the U.S. Public Interest Research Group. U.S. PIRG is the national lobby office for the state PIRGs.

    Mr. Chairman, Congressman Nadler, thank you very much for the opportunity to testify here today. On behalf of the PIRGs and our nearly 1 million citizen members, I want to express in the strongest possible terms our opposition to both H.R. 1036 and H.R. 1704. I urge the subcommittee not to favorably report either of these bills or any so-called regulatory reform legislation that will benefit special interests and hurt ordinary people by weakening much needed public protections or preventing them from taking effect.

    At the outset, I would like to say that our opposition to both of these bills at issue today is not meant to serve as a defense of the current Federal regulatory process. Overburdened, underfunded Federal agencies often take years to issue new public protections, even rules that are urgently needed to address serious public health risks. This time-consuming process ends up draining needed resources and attention from the enforcement of existing rules and standards.
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    The bills at issue today, however, provide nothing to make the regulatory process work better for the American people. Instead, each would make it significantly worse.

    The three points that I would like to make today are that H.R. 1036 and 1704 are unworkable, unnecessary and, most importantly, would cause considerable harm to ordinary Americans.

    Taking 1036 first, this misguided proposal would require every Federal regulation to receive congressional approval before it becomes effective; would hamstring Federal agencies, lead to gridlock in Congress, and render the implementation of numerous popular health, safety and environmental programs essentially impossible.

    In practical terms, Congress simply cannot screen every agency rulemaking. Given that the 105th Congress has enacted only 44 bills this year, one wonders how it would find the time to give adequate consideration to even a fraction of the thousands of regulatory actions 1036 would flush into the already clogged legislative pipeline.

    In addition to its staggering logistical problems, the bill would also severely undermine the quality of regulatory decision-making. It seems unavoidable that critical public policy decisions that are now based on sound science and technical expertise would instead be made politically and subject to the influence of regulated special interests that fill congressional campaign coffers.

    As unworkable as this bill is from a policy standpoint, my most urgent point regarding it is that the implications of this bill for ordinary Americans would be devastating. What the sponsors of this legislation have failed to grasp and, one hopes, did not intend is that the real lives of ordinary Americans would be harmed and destroyed if the government's ability to protect our food, drugs, health and environment and its ability to ensure the safety of our consumer products and transportation systems is paralyzed.
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    Consider a few examples. In 1994, Alex Donley of Chicago, Illinois, died at 6 years old after eating hamburger meat contaminated with E. coli, a pathogen found in cattle feces. The E. coli Alex ingested destroyed his organs and liquefied portions of his brain. After the death of her only child, Alex's mother Nancy joined and later become president of Safe Tables Our Priority, or STOP, a national organization that fights for better food safety protections, because in addition to her son, 9,000 other Americans die each year from bacteria in their food, and between 30 to 40 million Americans get sick.

    Nancy Donley and others have been working for several years with the Department of Agriculture and industry stakeholders to modernize meat inspection regulations for the first time in 90 years. Despite the success of this careful multistakeholder, multiyear regulatory negotiation, more work needs to be done. As the recent Hudson Foods recall of millions of pounds of tainted meat demonstrate, unsafe food continues to threaten the health and lives of American families.

    If 1036 were enacted, however, further steps taken by the Department of Agriculture, with input of stakeholders to ensure safe meat, would be rendered moot, and millions of children would continue to be put at risk.

    Similarly misguided and problematic is 1704. This bill—the CORA established by this bill would essentially repeat the regulatory analytic functions currently conducted by various coordinated arms of the executive branch. Duplication of these functions is not only wasteful, but also expensive. A Congress that prides itself on fiscal restraint and streamlining government should reject legislation like this that would quite possibly fail one of its own cost benefit tests.
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    In addition, important decisions at CORA regarding cost and benefits of agency rules would be made without public input or accountability, and, therefore, CORA can be expected to serve as a means to defeat public protections that regulated parties dislike by giving Congress an excuse to weaken or reject them on the basis of cost.

    So like 1036 then, this bill would have a painful impact in the real world. Overemphasis on cost does not mean better regulatory decision-making, but it definitely means weaker safeguards, which means more E. coli deaths, more cryptosporidium outbreaks, more airline crashes, more baby crib deaths and the like.

    So in conclusion, Mr. Chairman, and Congressman Nadler, the State PIRGs are strongly opposed to these bills that are the subject of today's hearing, and we urge the committee to take no further action on the bills.

    Thank you very much for the opportunity to speak.

    Mr. GEKAS. We thank the gentleman.

    [The prepared statement of Mr. Robins follows:]

PREPARED STATEMENT OF TODD E. ROBINS, STAFF ATTORNEY, U.S. PUBLIC INTEREST RESEARCH GROUP

Introduction

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    Good morning, my name is Todd Robins. I am an attorney with the U.S. Public Interest Research Group. U.S. PIRG is the national lobbying office for the State PIRG organizations active in more than 30 states around the country. The State PIRGs are citizen based non-profit, non-partisan environmental and consumer watchdog groups with nearly one million members nationwide. For more than twenty-five years, PIRGs have worked to pass, strengthen, and defend laws that protect public health, safety, and the environment. The PIRGs are also members of Citizens for Sensible Safeguards, a broad based coalition of consumer, environmental, labor, civil rights, and health care organizations opposed to legislative proposals that would undermine federal safeguards.

    Mr. Chairman, Congressman Nadler, members of the Subcommittee, thank you for the opportunity to testify here this morning. Unfortunately my message today must be a negative one: on behalf of the PIRGs and our citizen members, I want to express in the strongest possible terms our opposition to both H.R. 1036 and H.R. 1704. I urge the committee NOT to favorably report either of these bills, or any other so-called ''regulatory reform'' legislation, that will benefit special interests and hurt real people by substantially delaying, and in many cases preventing, much-needed public protections from taking effect.

    At the outset I would like to say that our opposition to both of the radical proposals that are the subject of this morning's hearing is not meant to serve as a defense of the current federal regulatory apparatus. From the perspective of the public interest, federal agencies are in many cases over-burdened and under-funded. As a result, agencies often take years, and in some cases more than a decade, to issue new public protections—even rules that are urgently needed to address serious public health risks. For example, the Occupational Safety and Health Administration's (OSHA's) rule on worker exposure to the cancer-causing substance methylene chloride took nearly 12 years.
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    Today's time-consuming regulatory process ends up draining needed resources and attention from the enforcement of existing rules and standards. The Environmental Protection Agency's (EPA's) implementation of the Clean Water Act is illustrative: the agency has taken four years to finalize imminent new pollution standards for a single industry sector—the pulp and paper industry. Meanwhile, EPA Clean Water Act inspections dropped 31 percent and administrative enforcement of the Act declined 53 percent from fiscal year 94 to fiscal year 96. Out of frustration with these deficiencies—frustration shared by the PIRGs and other members of the public interest and environmental communities—comes our resolute opposition to proposals such as H.R. 1036 and H.R. 1704. These bills not only provide nothing to make the regulatory process work better for the American people, but would make it significantly worse.

    With respect to these bills, I would like to make three points about each bill in turn. First, both bills are entirely unrealistic and unworkable. Second, and more importantly, by delaying or preventing new public safeguards from being issued and by opening the door to significantly weakening those that are issued, both bills would cause considerable harm to ordinary Americans. Finally, I will conclude by demonstrating that both bills are unnecessary because they are solutions in search of a real problem.

H.R. 1036 Would Hurt The American People By Preventing Public Safeguards That Protect Health, Safety And The Environment From Ever Taking Effect

    The ''Congressional Responsibility Act,'' H.R. 1036, is a misguided and logistically unworkable proposal. The bill, which would bar any new regulatory action from taking effect until the measure has been considered and approved by Congress and signed into law by the President, represents a fundamental restructuring of the federal regulatory system. If enacted, the bill would hamstring federal agencies, lead to gridlock in Congress, and render the implementation of numerous public health, safety, and environmental programs essentially impossible.
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    In practical terms, Congress simply cannot screen every agency rulemaking. Consider that since January, the Executive Branch has issued well over 1000 new regulations. During that same period, the 105th Congress has enacted exactly 44 public laws. Given Congress' apparent difficulty to pass in a timely manner the 13 appropriations measures needed to keep the government operating, as well as it's inability to reauthorize important laws like the Clean Water Act and Superfund until years after the deadlines have passed, one wonders how this over-burdened institution will find the time to give adequate consideration to even a fraction of the thousands of regulatory actions that H.R. 1036 would flush into the already-clogged legislative pipeline. What is more, because the bill would require Congress to review all rules, regulatory actions ranging from the exceedingly mundane, like the National Fish and Wildlife Service's rule establishing the start of the hunting season, to the extremely urgent, like Federal Emergency Management Agency disaster and emergency area designations, would languish pending House and Senate approval.

    In addition to the staggering logistical problems posed by H.R. 1036, the bill would also severely undermine the quality of regulatory decision making. Congress is not qualified to second-guess the highly technical and scientific judgements agencies make when developing health and safety protections. Even if it were, it seems unavoidable that, under H.R. 1036, critical public policy decisions that are now based on science or technical expertise, as required by existing statutes as well as the Administrative Procedure Act, would instead be subjected to the political influence of the regulated special interests that fill Congressional campaign coffers. Thus, whether or not Congress is capable of independently evaluating the toxicological data underlying Food and Drug Administration new drug approvals or the technical criteria used by Federal Aviation Administration engineers to set airline safety standards, our position is that this is an inappropriate role for Congress to play because such decisions are more likely to be based on politics than sound science.
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    The implications of this bill for ordinary Americans would be devastating. As I have described, H.R. 1036 would essentially close down the federal agencies charged with carrying out the laws that protect our health, safety, and environment. If any new safeguards somehow find their way through Congress, they will inevitably provide weaker protection as a result of high-stakes special interest political influence. What the sponsors of this legislation have failed to grasp, and one hopes did not intend, is that this scenario will cause substantial harm to real people. Consider a few examples:

  In 1994, Alex Donley of Chicago, Illinois died at six years old after eating hamburger meat contaminated with E. coli 0157:H7, a pathogen found in cattle feces. The E. coli Alex ingested destroyed his internal organs and liquefied portions of his brain.(see footnote 2) After the death of her only child, Alex's mother, Nancy, joined and later became president of Safe Tables Our Priority (S.T.O.P.), a national organization that fights for better food safety protections because, in addition to her son, 9,000 other Americans die each year from bacteria in their food and between 30 and 40 million Americans a year get sick. To address this extremely serious problem, Nancy Donley of S.T.O.P and others have been working for several years with the Department of Agriculture and industry stakeholders to modernize meat inspection regulations for the first time in 90 years. Despite the success of this careful multi-year, multi-stakeholder regulatory negotiation, more work needs to be done. As the recent Hudson Foods recall of millions of pounds of tainted meat demonstrates, unsafe food continues to threaten the health and lives of American families. If H.R. 1036 were enacted, however, further steps taken by the Department of Agriculture, with the input of S.T.O.P., other groups, and the cattle and poultry industries, to ensure safe meat would be rendered moot, and millions of children would continue to be put at risk.
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  In 1993, 100 residents of Milwaukee, Wisconsin lost their lives, and 400,000 others were sickened by a massive outbreak of the parasite cryptosporidium in the city's drinking water system. Six months later, the disease continued to haunt the survivors: 3-year-old Becky Furmann continued to fight off diarrhea; Stacy Trzebiatowski ran up $35,000 in medical bills and lost a spleen; Mark Rahn, a transplant recipient, had to fight for his life all over again; and cancer patients had to stop their chemotherapy.(see footnote 3) At the time of the 1993 outbreak, no federal standards for cryptosporidium in drinking water existed although the parasite had caused several major disease outbreaks in the past decade. Since the Milwaukee disaster, the Environmental Protection Agency has initiated a multi-phase process to develop regulations to protect the public from the devastation of cryptosporidium. If H.R. 1036 were passed, however, the EPA's final standards would join countless other critical public protections in the logjam of agency rules awaiting Congressional action. Meanwhile, hundreds more could be killed and thousands debilitated by this preventable disease that contaminates our drinking water. Moreover, important new mandates in the Safe Drinking Water Act enacted last year, the 104th Congress' proudest environmental accomplishment, would never be implemented if Congress now enacts H.R. 1036.

    Literally countless other critically needed public safeguards would face the same fate, and millions of Americans would be killed, injured, or put at risk if H.R. 1036 became law. Real lives would be destroyed or harmed as the government's ability to protect our food, drugs, health, and environment, and its ability to ensure the safety of our consumer products and transportation systems would be paralyzed.

H.R. 1704 Is Wasteful And Would Hurt The American People By Opening The Door To Weaker Health, Safety, and Environmental Protections
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    Similarly misguided and problematic is H.R. 1704, the ''Congressional Office of Regulatory Analysis (CORA) Creation Act.'' This bill, which would create a new office of Congress to conduct its own regulatory analyses of major rules issued by federal agencies, represents big government and redundant bureaucracy at its worst. The CORA H.R. 1704 would create would essentially repeat the time-consuming and expensive regulatory analyses of major rules as well as an annual report estimating the total cost of federal regulations on the U.S. economy currently conducted by the Office of Management and Budget's Office of Information and Regulatory Affairs (OIRA) pursuant to Executive Order 12866. In addition, CORA would also duplicate the ''Regulatory Impact Analyses'' currently performed by individual agencies and the cost estimates required under the Unfunded Mandates Reform Act now handled by the Congressional Budget Office.

    Duplication of these functions is not only wasteful on its face, but is likely to be quite expensive. The bill authorizes the appropriation of whatever funds CORA needs to carry out its responsibilities. Considering that OIRA reviewed 500 major rules last year and runs on an annual budget of $5 million and that CORA would have a broader mandate, it can be expected that CORA's price tag would run substantially higher. It seems odd that a Congress that prides itself on fiscal constraint and streamlining government would consider legislation like this that would cost taxpayers millions of dollars with few, if any, benefits. As public interest organizations that fight for strong environmental, health, and consumer safeguards, we find it particularly objectionable that the CORA would siphon off much-needed, ever-shrinking resources agencies need to enforce existing programs.

    H.R. 1704 is not only quite likely to fail its own cost-benefit test, but is unrealistic as well. The bill would require CORA to carry out its duties with respect to all major rules and non-major rules requested for review by Committees and individual Members. The bill gives CORA a mere 45 days to complete its review of a particular regulation. Considering the sheer volume of rules CORA would be required to re-review, and that some of the regulatory analyses CORA would be required to perform could takes years to complete, the 45 day deadline will seems highly unrealistic.
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    In addition to being costly and redundant, H.R. 1704 lacks public accountability and therefore, could lead to the defeat of critical public protections. Under the bill, CORA would be required to conduct cost-benefit analyses just like federal agencies. Federal agencies are bound by the Administrative Procedure Act (APA), which requires them to take steps, like notice and comment, to ensure openness and build a record on which agency action can be judicially reviewed. CORA, however, would not be bound by the APA, which means that important decisions at CORA regarding the costs and benefits of an agency rule would be made without public input. As a result, CORA is more likely to be used as a tool to advance a political agenda rather than a source of objective analysis.

    Given the access to the legislative process that well-funded special interests currently enjoy as a result of our campaign finance laws, CORA can be expected to serve as a means to weaken public protections that regulated parties dislike. In the current regulatory process, the cost-benefit tests used by agencies—with the checks and balances afforded by the APA—are already lopsided in favor of industry. Such tests inevitably overvalue industry's inflated cost concerns. For example, in 1990 air polluters complained that curbing acid rain would cost $10,000 per ton of pollutant, but today reductions are being made for as little as $100 per pound. On the other side of the equation, cost-benefit tests undervalue the human and environmental benefits of protective standards. In a recent study the EPA valued the ''benefits'' of reducing lead poisoning in children as the present value of lost earnings—or $4,588 per IQ point. Few parents would find this adequate compensation. With no means for public input or accountability, and predictably high levels of access for industry, CORA's cost-benefit studies are likely to be even further skewed toward emphasizing cost over benefits. As a result, H.R. 1704 will give Congress an excuse to weaken or reject important public protections on the basis of cost, overriding popular and effective laws, enacted on a bipartisan basis, that have for decades put health and safety first.
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    Like H.R.1036, then, this bill would have a painful impact in the real world. Weaker safeguards mean more E. coli deaths, more cryptosporidium outbreaks, more airline crashes, more baby crib deaths, and the like. A Congress that says it cares about the health and environment of the American people should reject this bill.

    My statement thus far has summarized what amounts to a very strong case against H.R. 1036 and H.R. 1704 as unworkable and wrongheaded proposals that will weaken public protections or prevent them from ever taking effect, thereby harming American families who depend upon government to inspect their meat, protect their water and air, and ensure the safety of the products they use. The final point I would like to make this morning is that neither H.R. 1036, H.R.1704, nor any other wholesale, one-size-fits-all so-called regulatory ''reform'' package is necessary because such proposals pretend to solve a problem that does not actually exist.

    Bills like H.R. 1036 and 1704, as well the Thompson/Levin Regulatory Improvement Act of 1997 currently under consideration in the Senate, are inappropriate because they are based on a one-sided assumption that we need to reign in federal agencies run amok. This assumption only addresses the complaints of regulated parties whose interests in increased short-term profits are translated into getting government off the backs of the ''the people.'' Meanwhile, you don't hear ordinary citizens crying out for fewer meat inspections, dirtier water, and more cursory safety checks of airplanes or baby cribs. To the contrary the public, in poll after poll, overwhelmingly favors strengthening environmental and public health protections over measures to reduce the regulatory burden. Therefore, a more balanced and responsive approach to reforming the regulatory system would address current deficiencies in public and environmental health protections, as well as examine claims of burdensome regulations, rather than looking to Congress to hold regulatory agencies at bay.
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    Despite the fact that wholesale ''regulatory reform'' is based upon faulty, or at best, imbalanced assumptions, this Subcommittee should take note, before acting on H.R. 1036, H.R. 1704 or bills like them, that the 104th Congress enacted no less than 21 changes to the regulatory process, fundamentally changing the way federal agencies go about doing their business. Those changes are embodied in the Small Business Regulatory Enforcement Fairness Act, the Unfunded Mandates Reform Act, the regulatory accounting rider attached to the fiscal year 97 Omnibus Appropriations Bill, and the Paperwork Reduction Act of 1995. Congress should assess the impact of these changes on the efficiency and effectiveness of the regulatory process in protecting the public before moving forward with sweeping new changes.

Conclusion

    In conclusion, the State PIRGs are strongly opposed to the two bills that are the subject of today's hearing, H.R. 1036 and H.R. 1704. We urge the Subcommittee to take no further action on these bills, or any similarly unnecessary so-called ''regulatory reform'' bills. By tying the government in knots and giving special interests special access to weaken, delay, or block federal protections, these misguided bills will harm the health and safety of the American people and our environment.

    Thank you very much for the opportunity to testify.

INSERT OFFSET RING FOLIOS 37 HERE

    Mr. GEKAS. I am surprised at the emphasis you put on the fact that the agencies will have more concern for the people who consume food products and who breathe air and so forth than would Members of Congress, who actually come from the very areas and from the groups of people that they affect by their everyday decision-making on the Capitol. You seem to dismiss the ability of the Members of Congress to respond to the needs of people, but say, by implication, that the groups that you advocate are paragons of protection of the health of the people of our country. I am taken aback by that.
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    Mr. ROBINS. Well, Mr. Chairman, I appreciate your comments. I did not mean in anything I said to imply anything regarding the sentiment or sympathies of Members of Congress. What I did say was that congressional review—mandatory congressional review of every Federal regulatory action—is, first of all, completely unworkable, and therefore would lead to grinding our system of public protections and safeguards to a halt, grind it to a halt, which is a problem for real people in the real world who rely on the government to inspect their meat, to ensure safe drinking water, ensure safe products.

    So my first and foremost point is not whether Congress' intentions are poor or whether Congress would be inclined to provide lessened protection or care less about their constituents. My point is that Congress simply would not be up to the job because of the political process, because of the sheer volume of the regulations that are coming out.

    Although I would like to say, as a secondary point, that there is an underlying assumption that fuels much of the talk about one-size-fits-all regulatory reform, and that is that the Federal agencies have run amuck and need to be checked and balanced by Congress. And our feeling is that that assumption is one-sided and imbalanced because it only looks at the complaints of the regulated community, which are often translated into get government off the backs of the people.

    You actually don't hear members of my organization saying, you know, we want fewer meat inspections, we want dirtier water or the like.

    Mr. GEKAS. I would like to inform you that in this subcommittee we have heard more testimony from individual citizens who are harmed by the long arm of regulations than we have had small businesses, for instance, or big corporations, although I am sure they would find reason, too. We have had homeowners and citizens who have some little problem with the environment in their backyard in which the regulators have overreached in many instances.
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    So we are, I believe, as Members of Congress, sensitive to those individual victims as they style themselves, and with which we agree, victims of the regulators.

    I will reserve the balance of my time and yield 5 minutes to the gentleman from New York.

    Mr. NADLER. Just one question for Mr. Brightup.

    Your testimony essentially is that the regulatory agencies have all kinds of burdensome regulations, such as on—yes, all sorts of burdens on you. You include in your testimony an op-ed article from a few years ago that ridicules OSHA regulations to prevent falls and EPA regulations regarding the safe removal of asbestos roofing.

    Isn't it a fact, though, all that these regulations do not cover roofing projects on single-family homes, on residential buildings containing four or fewer dwelling units, so they are designed to not deal with small businesses who deal with small jobs. But the fact is that don't we need these regulations to protect the public health, and aren't falls the greatest source of fatalities in the construction industry?

    Mr. BRIGHTUP. In fact, falls are one of the greatest sources of injury and fatality in all industry. Frankly, most falls occur in the nursing home industry and cause the greatest amount of injury.

    In the roofing industry, OSHA came out with a revised fall protection standard that touched off a firestorm of protest among workers and employers alike when they dropped the height threshold for onerous work practices from 16 feet down to 6 feet.
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    This thing went over like a bomb. No one liked it. It resulted in a——

    Mr. NADLER. Why, because 6-foot falls are OK?

    Mr. BRIGHTUP. No. In fact, you can injure yourself at 6 feet. However, all of the parties involved, including, Mr. Nadler, the United Union of Roofers and Waterproofers, said don't drop it any lower than 10 feet. But this is an example of the fact that the administrative process, the rulemaking process, which looks great on paper, is not working.

    Mr. NADLER. Well, but what would you substitute it for? If you have a process with due process where everybody can come in and testify, and you don't like the decision that somebody made, under Mr. Hayworth's bill who would you talk to? Would you talk to your Congressman, and he would have to deal with 2,000 or 3,000 of these a year, plus everything else we deal with, and he would have no time to give you any attention at all, unless, of course, you were a major campaign contributor, and then he would make time?

    Mr. BRIGHTUP. Well, Mr. Nadler, I am——

    Mr. NADLER. Nadler.

    Mr. BRIGHTUP. Mr. Nadler, I am—excuse me, sir. I am sensitive to your concerns about Mr. Hayworth's bill. We are endorsing Mrs. Kelly's legislation, the Congressional Office of Regulatory Analysis.
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    I believe also that the Congressional Review Act does work. It hasn't been athletically used by the Congress yet. That applies, by the way, to all rules, not just major rules.

    Mr. NADLER. We do have the Congressional Review Act. Do you think that we need additional legislation at this time, or should we wait and see how that can work over a few years?

    Mr. BRIGHTUP. There is no question that additional legislation is needed. It may not necessarily be Mr. Hayworth's proposal. I believe Mrs. Kelly's is a great proposal.

    Mr. NADLER. Why not let the CRA work for a few years and see if that is adequate?

    Mr. BRIGHTUP. I think the reason that it hasn't been used yet is because you don't need a majority of the House and Senate to overturn a regulation which is causing great problems. You need a supermajority.

    And I point to the EPA's national ambient air quality standards for particulate matter in ozone, smog and soot. My guess is right now that probably there would be a majority of House Members that would vote to send that back to the Agency, but 218 doesn't do it. You need 285 because it would be vetoed undoubtedly by the White House. The question arises, why go to the floor with a resolution of disapproval if it is going to be an exercise in futility?
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    But I do believe that it will be used. It has been used in the past as the one-house legislative veto, which was ruled unconstitutional.

    Mr. NADLER. Thank you.

    Well, Mr. Robins, let me ask you—I don't want to talk about Mr. Hayworth's legislation because I think it is plain silly. I mean, it is just undoable, and I don't think it is going to get serious consideration, so let's talk about Mrs. Kelly's legislation.

    What would you think the impact of that bill would be if enacted? What would it do other than duplicate the bureaucracy we already have to review regulations? How would it go further?

    Mr. ROBINS. Congressman Nadler, it would go further than that. Our primary—I mean, it is worth noting, however, that it is an expensive, extremely expensive, proposal. Congressman Jackson Lee mentioned earlier the recent CBO study showing $570,000 as the average regulatory impact analysis cost. So when you multiply that out, you are looking at what some may characterize as a boondoggle, a tremendously expensive proposition to redo that. So that in and of itself is significant.

    But of the substantive impacts that would go beyond just repeating what already has been done is that Representative Kelly's legislation contains no mechanisms for public input or accountability. The Administrative Procedures Act and due process clause as interpreted by the courts has provided many opportunities for public notice and comment and judicial accountability in the regulatory process.
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    CORA would have no such protections, and, therefore, given the political influence of special interests in Congress, it is very likely that cost-benefit analysis—analyses which currently at the agency level are already inherently favoring industry cost estimates which are overinflated and are——

    Mr. NADLER. Why do cost benefit analyses inherently favor industry?

    Mr. ROBINS. Well, cost-benefit analysis, generally requires that we attach a dollar value to both the costs and the benefits of a regulation. And what we have seen historically is that the agency, due to limited resources, must require—must rely upon industry-supplied cost data. And if you take the clean air acid rain regulations as an example, in 1990 when those were being debated, industry was complaining rather loudly that those acid rain regulations would cost $10,000 per ton of pollutant to reduce acid rain pollution.

    As it turned out, in many cases it has been more like $100 per ton. At the same time, it is very difficult to attach a dollar value to the benefits of protective human health and environmental standards.

    So just to finish, I realize I am out of time, my point is that without the APA procedures that we have in the current system, the CORA procedures would be even more skewed against those with political influence and would lead to the weakening of regulations on the basis of cost.

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    Mr. NADLER. Thank you.

    Mr. GEKAS. The time of the gentleman has expired.

    We turn to the gentleman from Tennessee, Mr. Bryant, for 5 minutes.

    Mr. BRYANT. Thank you, Mr. Chairman, and thanks to each one of the members of this very distinguished panel.

    Mr. Robins, I have read your testimony, have listened to it, and I think you raise some legitimate concerns. I think it is always a concern when you talk about politics in Washington. But I think as happens up here, we get one side. I think we are all guilty of seeing things myopically. When I hear about how things have shifted over in our cost-benefit analyses and those kinds of things to that bogeyman big industry, I do have concerns that the politics are one-sided because certainly there are no stronger groups in Washington who support candidates with PAC money and pressure like industry does than environmental groups and labor groups and consumer groups. Certainly, they are out there in force working to, in effect, balance the power of big industry on these.

    Consistently, what I hear in my town meetings—and these aren't CEOs coming to my town meetings—are complaints about overregulation and too much regulation. So I think in consideration of your comments that perhaps that is really not the case.

    That was something I heard before I was elected, that we are getting too many regulations, and I am concerned that we are. I think your terminology was thousands of regulatory actions. I mean, I really don't think we need thousands each year. At what point are we going to be regulated enough?
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    I don't think things are changing that quickly that we need thousands of these. I think we are out of balance. I think Mr. Hayworth was right when he talked about the balance situation, because we all want clean water and clean air and safe working conditions and those kinds of things.

    At the end of your statement, you say that maybe we are off track on this legislation, but that a more balanced and responsive approach to reforming the regulatory system would address current deficiencies in public and environmental health protections, as well as examine claims of burdensome regulations rather than looking to Congress to hold regulatory agencies at bay.

    Very quickly, could you tell me, what can we do to better the existing system? And again try to be quick, if you can.

    Mr. ROBINS. Thank you, Congressman Bryant. You raise an excellent question. And I did say at the outset of my testimony that we are—I am not here today to defend the current system. There certainly are, I am sure, many examples of unwarranted overregulation.

    What I would say is, first of all, some of the most important complaints of especially small businesses and small governments have been addressed by SBREFA, and we should give those laws a chance to work—agencies are just beginning to grapple with the implications of those new laws—before we enact sweeping changes that fundamentally alter the structure of government. So that is my first comment.
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    My second comment is I have specific experience from my career and my work, especially on environmental issues, of how regulatory problems, both the burdensome side and the need to protect public health, the environment, what have you, can be worked out, and that is through careful multistakeholder processes where agencies convene either through the FACA, the Federal Advisory Committee Act, process or through various other informal processes. The opportunity is for people to come together and figure out a consensus way to meet the need of protecting people while at the same time doing it in a way that is pallatable to those who are going to be regulated.

    Mr. BRYANT. Could I stop you at this point and ask if maybe you could supplement your answer if you would like to in writing? Because I would like to ask Professor Hamilton a real quick question.

    Mr. ROBINS. Sure.

    Mr. BRYANT. How would you counter his argument that politics would play too much of a role in this? I think you are a constitutional scholar, and you are taking this position, but how would you——

    Ms. HAMILTON. That is exactly why I would hope that politics—and what I mean is accountability—would be factored into the situation now. With all due respect to Mr. Robins' perspective, he has given testimony and witness here to the huge problem that Congress faces. Congress has a constitutional problem, and it has to solve it. The people understand the problem. They understand they are not getting the kind of regulation that serves their needs, and they are getting too much regulation that is not serving their needs.
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    If you house these decisions in the Congress, which is the branch closest to the people, the people will have input. If you house these decisions in the executive branch, they will not.

    I understand that there continues to be concern about feasibility. But I think that is something that needs to be hammered out once a policy objective has been determined that the Constitution will be obeyed.

    I do think CORA is a bit of a problem, because it doesn't solve the failure to take responsibility. It creates a minibureaucracy in the legislative branch.

    I doubt a new, smaller bureaucracy is going to solve a huge bureaucracy problem. What needs to happen is that Members of Congress start making the substantive decisions that the people need to have made for them.

    Mr. GEKAS. We thank the gentleman.

    Mr. NADLER. Mr. Chairman.

    Mr. GEKAS. Yes.

    Mr. NADLER. I ask unanimous consent that all Members have 7 legislative days to submit additional questions and other materials for the record.

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    Mr. GEKAS. Without objection.

    Mr. GEKAS. We want to thank the witnesses. They have spurred a debate on this very important subject, and as the question posed by the gentleman from New York indicates, we want to come back to you individually for more insight. We thank you very much. This hearing is adjourned.

    [Whereupon, at 12:50 p.m., the subcommittee adjourned.]

A P P E N D I X

Material Submitted for the Hearing Record


Congress of the United States,
House of Representatives,
Washington, DC., September 30, 1997.
Hon. GEORGE GEKAS, Chairman,
Subcommittee on Commercial and Administrative Law,
Washington, DC.

    DEAR CHAIRMAN GEKAS: I am writing to congratulate you on the successful hearing on the administrative rulemaking process your subcommittee held on September 25, 1997. I believe your leadership on this issue will help shape this important debate for years to come, and I was pleased to be involved in this important endeavor. I am also writing to clarify an exchange I had with the ranking minority Member, Congressman Nadler, who expressed doubts about my proposal due to certain time constraints.
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    As you know, H.R. 1036, the Congressional Responsibility Act, would require Congress to vote in an expedited fashion on every proposed rule and regulation promulgated by an executive branch agency. This would ensure that we comply with Article I, Section 1 of the Constitution, which states that ''All legislative powers herein granted shall be vested in a Congress,'' by ending the unconstitutional delegation of legislative powers to the executive branch.

    Although I believe Mr. Nadler's misstatements were unintentional, I want to clarify several points. Mr. Nadler concluded that based on the number of major and significant rules promulgated last year, Congress must remain in session at a minimum of nearly three times longer than it did last year if my proposal were to become law. Unfortunately, Mr. Nadler's methodology was flawed. His conclusions were based on the MAXIMUM amount of time Congress could remain in session if we debated and voted on every major or significant rule promulgated by executive branch agencies.

    I believe Congress would approve many rules by unanimous consent or voice vote. Only controversial rules would require debate, which would be expedited under my bill. Furthermore, non-controversial rules could be considered en bloc.

    There is no doubt that Congress would spend more time in session due to the enactment of the Congressional Responsibility Act, but, despite Mr. Nadler's assertions, I believe the additional time would be minimal. Besides, is it worth sacrificing the Constitution for the sake of political convenience? I certainly hope not! Congress must take back its constitutionally-granted powers to enact laws, and I believe my proposal is an important and logical solution to this problem of unconstitutionally delegating powers to the executive branch.
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    Again, I congratulate you on an outstanding hearing, and I look forward to working with you in reforming the administrative rulemaking process. If I can be of further assistance, please do not hesitate to contact me. In the meantime, please accept my best regards.

Sincerely,


J.D. Hayworth,
Member of Congress.
   


American Public Health Association,
Washington, DC., September 29, 1997.
Hon. JERROLD NADLER,
Ranking Minority Member.
House Judiciary Subcommittee on
Commercial and Administrative Law.
Washington, DC.

    DEAR REPRESENTATIVE NADLER, the American Public Health Association (APHA), consisting of more than 50,000 public health professionals dedicated to advancing the nation's health opposes HR 1036, The Congressional Responsibility Act of 1997. APHA believes this legislation poses an unacceptable threat to public health by creating a serious impediment to the adoption and implementation of necessary health and safety regulations.

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    While we appreciate Congress' interest in providing oversight of agency activity, this legislation contradicts the reason executive agencies were given discretion under the Administrative Procedure Act. Congress has numerous major public policy issues to debate and determine and has neither the time nor the resources to discuss and approve the thousands of technical regulations that are promulgated each year.

    Congress already has the authority to review the actions of executive agencies when it determines that this is necessary. This existing authority is sufficient to investigate and analyze potential problems in these agencies. It also provides clear pathways for elected officials to hold executive agencies accountable when they have reason to believe that an agency has acted inappropriately.

    HR 1036 would have seriously delayed important public health actions of the past such as the removal of lead from gasoline, the requirement of air bags and safety belts in automobiles, and the recently promulgated revisions of meat, poultry, and seafood safety regulations. Furthermore, major rulemakings for health and safety issues already take, on average, several years. The public health community strongly asserts that we should not lengthen this process even further.

    Health and safety decisions are currently and appropriately delegated to agencies with the public health expertise to evaluate and decide technical matters to ensure effective and protective health and safety regulations. APHA maintains that the scope and timing of these decisions should remain within agency jurisdiction without the unnecessary additional step of affirmative Congressional action before they can take effect. This layering of decision making will serve only to delay important public health protections and proves to be ineffective oversight.
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    We appreciate this opportunity to have our views submitted into the Congressional Record. Please feel free to contact APHA should you bet interested in additional information regarding how HR 1036 undermines public health.

Sincerely,


Mohammad N. Akhter, MD, MPH,
Executive Director.
    cc: Representative Conyers.

    MNA/imh

INSERT OFFSET RING FOLIOS 38 TO 115 HERE

50–419 CC

1997
THE ROLE OF CONGRESS IN MONITORING ADMINISTRATIVE RULEMAKING

HEARING

BEFORE THE

SUBCOMMITTEE ON
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COMMERCIAL AND ADMINISTRATIVE LAW

OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

ONE HUNDRED FIFTH CONGRESS

FIRST SESSION

ON

H.R. 1036 and H.R. 1704

THE ROLE OF CONGRESS IN MONITORING ADMINISTRATIVE RULEMAKING

September 25, 1997

Serial No. 54

Printed for the use of the Committee on the Judiciary

For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402

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COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
STEVEN SCHIFF, New Mexico
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
SONNY BONO, California
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRISTOPHER B. CANNON, Utah

JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
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HOWARD L. BERMAN, California
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN ROTHMAN, New Jersey

THOMAS E. MOONEY, Chief of Staff-General Counsel
JULIAN EPSTEIN, Minority Staff Director

Subcommittee on Commercial and Administrative Law
GEORGE W. GEKAS, Pennsylvania, Chairman
STEVEN SCHIFF, New Mexico
LAMAR SMITH, Texas
BOB INGLIS, South Carolina
ED BRYANT, Tennessee
STEVE CHABOT, Ohio

JERROLD NADLER, New York
SHEILA JACKSON LEE, Texas
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MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts

RAYMOND V. SMIETANKA, Chief Counsel
CHARLES E. KERN II, Counsel
JAMES W. HARPER, Counsel

C O N T E N T S

HEARING DATE
    September 25, 1997

TEXT OF BILLS
    H.R. 1036
    H.R. 1704

OPENING STATEMENT

    Gekas, Hon. George W., a Representative in Congress from the State of Pennsylvania, and Chairman, Subcommittee on Commercial and Administrative Law

WITNESSES

    Brightup, Craig, Director of Governmental Relations, National Roofing Contractors Association
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    Brownback, Hon. Sam, a United States Senator from the State of Kansas

    Hamilton, Marci A. Hamilton, Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University

    Hayworth, Hon. J.D., a Representative in Congress from the State of Arizona

    Kelly, Hon. Sue W., a Representative in Congress from the State of New York

    Robins, Todd E., Attorney, U.S. Public Interest Research Group

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Brightup, Craig, Director of Governmental Relations, National Roofing Contractors Association: Prepared statement

    Brownback, Hon. Sam, a United States Senator from the State of Kansas: Prepared statement

    Hamilton, Marci A. Hamilton, Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University: Prepared statement

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    Hayworth, Hon. J.D., a Representative in Congress from the State of Arizona: Prepared statement

    Jackson Lee, Sheila, a Representative in Congress from the State of Texas

    Kelly, Hon. Sue W., a Representative in Congress from the State of New York: Prepared statement

    Robins, Todd E., Attorney, U.S. Public Interest Research Group: Prepared statement









(Footnote 1 return)
Pursuant to the terms of rule XI, clause 2(g)(4), of the Rules of the U.S. House of Representatives, NRCA has received the following federal grant, contract, in the current and preceding two fiscal years: International Trade Administration (U.S. Department of Commerce) Award Number 4036–97–8A95, Special American Business Internship Training Program, Amount—$29,500.


(Footnote 2 return)
Nancy Donley, Statement to the Senate Governmental Affairs Committee, Hearing on Regulatory Improvement Act of 19976, September 12, 1997.


(Footnote 3 return)
Marilyn Marchione, ''Cryptosporidium's devastation lingers,'' The Journal, September 19, 1993.