General Management Laws: A Compendium

Congressional research reportMay 19, 2004

Ask Donna

What actually matters in this document.

Text

Order Code RL30795

CRS Report for Congress

Received through the CRS Web

General Management Laws: A Compendium

Updated May 19, 2004

name redacted, Coordinator

Analyst in American National Government

Government and Finance Division

Congressional Research Service ˜ The Library of Congress

General Management Laws: A Compendium

Summary

This report (hereafter “compendium”) is a companion to CRS Report RL32388,

General Management Laws: Major Themes and Management Policy Options. In

combination, these reports have three main objectives: (1) to identify and describe

the major management laws under which the executive branch of the federal

government is required to operate, including their rationale, design, and scope; (2)

to assist Members of Congress and their staff in oversight of executive branch

management; and (3) to help Congress when considering potential changes to the

management laws themselves, as well as other legislation, including authorization

statutes and appropriations.

The compendium contains profiles of selected “general management laws” —

broad statutes designed to regulate the activities, procedures, and administration of

all or most executive branch agencies. The quality of the general management laws,

as well as their implementation, are considered crucial to maintaining the

accountability of the executive branch to Congress, the President, and the public.

Moreover, these laws influence the effectiveness of federal agencies when they

implement, evaluate, and help formulate public policies.

The compendium includes more than 90 separate entries that describe general

management laws for the executive branch of the federal government. The entries

in the compendium are organized into the following seven functional categories: (1)

Information and Regulatory Management; (2) Strategic Planning, Performance

Measurement, and Program Evaluation; (3) Financial Management, Budget, and

Accounting; (4) Organization; (5) Procurement and Real Property Management; (6)

Intergovernmental Relations Management; and (7) Human Resources Management

and Ethics. These categories include many laws and topics, including the Freedom

of Information Act (FOIA, section I.E.), Privacy Act (I.F.), Federal Advisory

Committee Act (FACA, I.G.), National Environmental Policy Act (NEPA, I.L.), Data

Quality Act (I.O.; increasingly known as the Information Quality Act (IQA)),

Inspector General Act (II.A.), Government Performance and Results Act (II.B.),

Balanced Budget and Emergency Deficit Control Act (III.D.), Budget Enforcement

Act (III.E.), Government Corporation Control Act (IV.A.), Davis-Bacon Act (V.F.),

Unfunded Mandates Reform Act (UMRA, VI.C.), Hatch Act (VII.A.(5) and

VII.A.(29)), Ethics in Government Act (VII.B.), Federal Tort Claims Act (VII.E.),

and issues like information security (section I), improper payments (section III),

services acquisition and contracting (section V), and federal employees and civil

service laws (e.g., the National Security Personnel System at the Department of

Defense, and the Department of Homeland Security personnel system (section

VII.A)).

For each entry in the compendium, one or more CRS analysts present a brief

history of the general management law, describe the law’s major provisions, discuss

key developments and issues, and provide source readings for readers who want more

information. The compendium reflects the status of general management laws at the

end of the first session of the 108th Congress, and will be updated along with the

companion report to reflect actions taken through the close of the 108th Congress.

Acknowledgments

The following CRS analysts contributed to this compendium.

Coordinator: (name redacted)

Mildred L. Amer

(name redacted)

Hinda Ripps Chaikind

(name redacted)

Thomas Nicola

Patrick J. Purcell

(name redacted)

Michael Simpson

(name redacted)

Mildred Boyle provided research production assistance.

Suggestions and comments for future editions may be sent to [[redacted]@crs.loc.gov].

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Purposes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

How the Compendium and Companion Report Are Organized . . . . . . . . . . 2

Compendium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Companion Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I. Information and Regulatory Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A. Federal Register Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

B. Administrative Procedure Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

C. Federal Records Act and Related Chapters of Title 44 . . . . . . . . . . . . . 16

D. Congressional Review of Regulations Act . . . . . . . . . . . . . . . . . . . . . . 20

E. Freedom of Information Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

F. Privacy Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

G. Federal Advisory Committee Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

H. Government in the Sunshine Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

I. Paperwork Reduction Act of 1995 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

J. Regulatory Flexibility Act of 1980 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

K. Negotiated Rulemaking Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

L. National Environmental Policy Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

M. E-Government Act of 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

N. Federal Information Security Management Act of 2002 . . . . . . . . . . . . 65

O. Data Quality Act (Information Quality Act (IQA)) . . . . . . . . . . . . . . . . 70

II. Strategic Planning, Performance Measurement, and Program Evaluation . . . 73

A. Inspector General Act of 1978 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

B. Government Performance and Results Act of 1993 . . . . . . . . . . . . . . . . 82

C. Clinger-Cohen Act of 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

III. Financial Management, Budget, and Accounting . . . . . . . . . . . . . . . . . . . . . 93

A. Antideficiency Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

B. Budget and Accounting Act of 1921 . . . . . . . . . . . . . . . . . . . . . . . . . . . 98

C. Budget and Accounting Procedures Act of 1950 . . . . . . . . . . . . . . . . . 103

D. Balanced Budget and Emergency Deficit Control Act . . . . . . . . . . . . . 109

E. Budget Enforcement Acts of 1990 and 1997 . . . . . . . . . . . . . . . . . . . . 115

F. Congressional Budget and Impoundment Control Act . . . . . . . . . . . . . 122

G. Chief Financial Officers Act of 1990 . . . . . . . . . . . . . . . . . . . . . . . . . . 128

H. Government Management Reform Act of 1994 . . . . . . . . . . . . . . . . . . 135

I. Accountability of Tax Dollars Act of 2002 . . . . . . . . . . . . . . . . . . . . . . 140

J. Federal Managers’ Financial Integrity Act of 1982 . . . . . . . . . . . . . . . . 145

K. Federal Financial Management Improvement Act of 1996 . . . . . . . . . 150

L. Federal Credit Reform Act of 1990 . . . . . . . . . . . . . . . . . . . . . . . . . . . 156

M. Federal Claims Collection Act of 1966 . . . . . . . . . . . . . . . . . . . . . . . . 164

N. Debt Collection Act of 1982 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166

O. Federal Debt Collection Procedures Act of 1990 . . . . . . . . . . . . . . . . 170

P. Debt Collection Improvement Act of 1996 . . . . . . . . . . . . . . . . . . . . . 174

Q. Improper Payments Information Act of 2002 . . . . . . . . . . . . . . . . . . . 180

R. Cash Management Improvement Act (CMIA) of 1990 . . . . . . . . . . . . 187

S. User Fee Act of 1951 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189

IV. Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196

A. Government Corporation Control Act . . . . . . . . . . . . . . . . . . . . . . . . . 196

B. Reorganization Act of 1977, as Amended . . . . . . . . . . . . . . . . . . . . . . 200

C. Federal Vacancies Reform Act of 1998 . . . . . . . . . . . . . . . . . . . . . . . . 204

V. Procurement and Real Property Management . . . . . . . . . . . . . . . . . . . . . . . . 209

A. Public Buildings Act of 1959 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209

B. Federal Acquisition Streamlining Act of 1994 . . . . . . . . . . . . . . . . . . . 212

C. Federal Activities Inventory Reform (FAIR) Act of 1998 . . . . . . . . . . 215

D. Services Acquisition Reform Act (SARA) of 2003 . . . . . . . . . . . . . . . 218

E. Competition in Contracting Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220

F. Federal Contract Labor Standards Statutes . . . . . . . . . . . . . . . . . . . . . . 223

G. Prompt Payment Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226

VI. Intergovernmental Relations Management . . . . . . . . . . . . . . . . . . . . . . . . . 228

A. Intergovernmental Cooperation Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 228

B. Intergovernmental Personnel Act of 1970 . . . . . . . . . . . . . . . . . . . . . . 231

C. Unfunded Mandates Reform Act of 1995 . . . . . . . . . . . . . . . . . . . . . . 234

D. Single Audit Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238

VII. Human Resources Management and Ethics . . . . . . . . . . . . . . . . . . . . . . . 243

A. Title 5: The Federal Civil Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243

Title 5, Part II — Civil Service Functions and Responsibilities

(Chapters 11-15)

(1) Office of Personnel Management (Chapter 11) . . . . . . . . . . . . . . 248

(2) Merit Systems Protection Board; Office of Special Counsel;

and Employee Right of Action (Chapter 12) . . . . . . . . . . . . . . . 253

(3) Special Authority (Chapter 13) . . . . . . . . . . . . . . . . . . . . . . . . . . 257

(4) Agency Chief Human Capital Officers (Chapter 14) . . . . . . . . . . 259

(5) Political Activity of Certain State and Local Employees

(Chapter 15) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262

Title 5, Part III — Employees

(Subparts A through I, Chapters 21-99)

Subpart A, General Provisions

(6) Definitions (Chapter 21) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265

(7) Merit System Principles (Chapter 23) . . . . . . . . . . . . . . . . . . . . . 266

Subpart B, Employment and Retention

(8) Authority for Employment (Chapter 31) . . . . . . . . . . . . . . . . . . . 272

(9) Examination, Selection, and Placement (Chapter 33) . . . . . . . . . 276

(10) Part-Time Career Employment Opportunities (Chapter 34) . . . 281

(11) Retention Preference, Voluntary Separation Incentive

Payments, Restoration, and Reemployment (Chapter 35) . . . . . 283

(12) Information Technology Exchange Program (Chapter 37) . . . . 287

Subpart C, Employee Performance

(13) Training (Chapter 41) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289

(14) Performance Appraisal (Chapter 43) . . . . . . . . . . . . . . . . . . . . . 291

(15) Incentive Awards (Chapter 45) . . . . . . . . . . . . . . . . . . . . . . . . . 295

(16) Personnel Research Programs and Demonstration Projects

(Chapter 47) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297

(17) Agency Personnel Demonstration Project (Chapter 48) . . . . . . 301

Subpart D, Pay and Allowances

(18) Classification (Chapter 51) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303

(19) Pay Rates and Systems (Chapter 53) . . . . . . . . . . . . . . . . . . . . . 305

(20) Human Capital Performance Fund (Chapter 54) . . . . . . . . . . . . 309

(21) Pay Administration (Chapter 55) . . . . . . . . . . . . . . . . . . . . . . . . 312

(22) Travel, Transportation, and Subsistence (Chapter 57) . . . . . . . . 315

(23) Allowances (Chapter 59) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318

Subpart E, Attendance and Leave

(24) Hours of Work (Chapter 61) . . . . . . . . . . . . . . . . . . . . . . . . . . . 320

(25) Leave (Chapter 63) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322

Subpart F, Labor-Management and Employee Relations

(26) Labor-Management Relations (Chapter 71) . . . . . . . . . . . . . . . . 325

(27) Antidiscrimination in Employment and Employees’ Right

to Petition Congress (Chapter 72) . . . . . . . . . . . . . . . . . . . . . . . 329

(28) Suitability, Security, and Conduct (Chapter 73) . . . . . . . . . . . . 333

(29) Political Activities (Chapter 73, Subchapter III) . . . . . . . . . . . . 335

(30) Adverse Actions (Chapter 75) . . . . . . . . . . . . . . . . . . . . . . . . . . 338

(31) Appeals (Chapter 77) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340

(32) Services to Employees (Chapter 79) . . . . . . . . . . . . . . . . . . . . . 342

Subpart G, Insurance and Annuities

(33) Retirement (Chapter 83) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 344

(34) Federal Employees’ Retirement System (Chapter 84) . . . . . . . . 347

(35) Health Insurance (Chapter 89) . . . . . . . . . . . . . . . . . . . . . . . . . . 349

(36) Long-Term Care Insurance (Chapter 90) . . . . . . . . . . . . . . . . . . 352

Subpart I, Miscellaneous

(37) Personnel Flexibilities Relating to the

Internal Revenue Service (Chapter 95) . . . . . . . . . . . . . . . . . . . 356

(38) Department of Homeland Security (Chapter 97) . . . . . . . . . . . . 362

(39) Department of Defense National Security Personnel System

(Chapter 99) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367

B. Ethics in Government Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 373

C. Ethics Reform Act of 1989 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376

D. Lobbying with Appropriated Monies Act . . . . . . . . . . . . . . . . . . . . . . 379

E. Federal Tort Claims Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 382

General Management Laws: A Compendium

Introduction

Purposes

This report, General Management Laws: A Compendium (hereafter

“compendium”), is a companion to CRS Report RL32388, General Management

Laws: Major Themes and Management Policy Options, by (name redacted). In

combination, these reports have three main objectives:

to identify and describe the major general management laws under

which the executive branch is required to operate, including their

rationale, design, and scope;

to assist Members of Congress and their staff in overseeing

management of the executive branch; and

to help Congress when considering potential changes to the

management laws, as well as other legislation, including authorizing

statutes and appropriations.1

The compendium contains profiles of selected “general management laws” — broad

statutes designed to regulate the activities, procedures, and administration of all or

most executive branch agencies.2 The quality of the general management laws, as

well as their implementation, are considered crucial to maintaining the accountability

of the executive branch to Congress, the President, and the public. Moreover, these

laws influence the effectiveness of federal agencies when they implement, evaluate,

and help formulate public policies.

As a complement to this compendium, the General Management Laws: Major

Themes and Management Policy Options report (“companion report”) focuses on

major themes and possible management policy options for Congress that emerge

when the general management laws are viewed together, as a whole. The

compendium reflects the status of general management laws at the end of the first

A related report, CRS Report RL30240, Congressional Oversight Manual, describes the

major purposes, processes, techniques, and information sources for congressional oversight

of the executive branch.

Agencies are sometimes exempted from the coverage of specific general management laws

due to a category into which they fall (e.g., department, government corporation, etc.),

specific provisions in an agency’s authorizing statute or appropriations, or provisions in the

general management law itself.

CRS-2

session of the 108th Congress, and will be updated along with the companion report

to reflect actions taken through the close of the 108th Congress.3

How the Compendium and Companion Report

Are Organized

Compendium. This compendium includes more than 90 separate entries that

describe general management laws for the executive branch. The entries are

organized into the following seven functional categories:4

Information and Regulatory Management;

Strategic Planning, Performance Measurement, and Program

Evaluation;

! Financial Management, Budget, and Accounting;

! Organization;

! Procurement and Real Property Management;

! Intergovernmental Relations Management; and

! Human Resources Management and Ethics.

Within the management field, functions typically refer to “business areas that require

related bundles of skill” or “groups of people with similar skills and performing

similar tasks.”5 (In the private sector, by way of comparison, functions often include

marketing, finance, production, and human resources.) This functional orientation

is a major theme that the companion report addresses.

Previous versions of this compendium, coordinated by (name redacted), reflected the status

of general management laws at the close of the 104th, 105th, and 106th Congresses,

respectively. This compendium stands on the shoulders of these efforts.

The listed functions are not necessarily the only way to categorize the report’s entries into

sections, which could have been aggregated differently or further broken down.

For more discussion of functional structures and perspectives within a management

context, see John R. Schermerhorn Jr., Core Concepts of Management (Hoboken, NJ: John

Wiley & Sons, 2004), pp. 119-120, and Peter F. Drucker, Management (New York: Harper

& Row, 1974), pp. 558-563. This usage of the term function differs from usages found in

Title 5 of the United States Code and in budgetary accounting. In Title 5, the term function

is used in several contexts, including agency strategic plans (5 U.S.C. § 306, requiring

agencies to specify goals and objectives for major functions and operations of the agency),

transfer of functions (5 U.S.C. § 3503), and reductions in force (5 U.S.C. § 3502). Title 5

does not define the term, but the implementing regulations for transfer of functions and

reductions in force define function as “all or a clearly identifiable segment of an agency’s

mission (including all integral parts of that mission), regardless of how it is performed” (5

C.F.R. § 351.203). With regard to budgetary accounting, the term function refers to

categories of federal spending, organized according to the purpose or mission of government

(e.g., income security, energy, and international affairs). The Congressional Budget and

Impoundment Control Act of 1974 established the first statutory foundation for budget

function classifications (see 2 U.S.C. § 632(a)(4) and 31 U.S.C. § 1104(c)). For background

on budget function classifications, see CRS Report 98-280, Functional Categories of the

Federal Budget, by (name redacted); and U.S. General Accounting Office,

Budget Function

Classifications: Origins, Trends, and Implications for Current Uses, GAO/AIMD-98-67,

Feb. 1998.

CRS-3

Most of the compendium’s entries discuss a specific law, or in some cases,

several related laws. The “Human Resources Management and Ethics” section,

however, presents most civil service laws according to their codification in Title 5

of the United States Code — the way that practitioners and specialists typically

discuss these laws. For each entry in this compendium, one or more CRS analysts

present a brief history of the general management law in a section entitled Statutory

Intent and History, describe the law itself in a section entitled Major Provisions, and

close with a summary of key developments and issues in a Discussion section.

Finally, for readers interested in more detail, each entry cites Selected Source

Reading.

All the entries in the compendium conform to the overall structure described

above; but because the laws have different audiences, levels of complexity, and

histories, the entries sometimes differ in extent, level of detail, or emphasis.

Companion Report. In turn, as a complement to this compendium, the

companion report identifies potential management policy options for Congress.6

First, the companion report provides historical context on the roles that Congress and

the President play in managing the executive branch. Next, the companion report

briefly discusses the extent to which management in the public and private sectors

can be compared. Finally, the largest share of the companion report analyzes major

themes that run through the general management laws and identifies potential

management policy options for Congress. The themes include:

Discretion for the Executive Branch. Congress frequently faces

the issue of how much discretion to give the executive branch.

Congress has several management policy options to address

delegation situations and help balance agency flexibility with

accountability.

Standardization vs. Customization. Should the management laws

under which agencies operate be standardized, with rules that apply

uniformly to many different agencies? Or should some agencies

have agency-specific laws that are customized to each agency’s

internal and external environments? Or should there be a mix of the

two approaches? The report discusses advantages and disadvantages

of the different approaches and analyzes two options for Congress

when making these decisions.

Functional Silos vs. Integrated General Management. A

functional perspective (e.g., looking at agency operations from the

perspective of a budget officer or human resources officer) is

important, because it can boost efficiency through specialization and

ensure centralized control over strategic decisions. However, if

functional orientations become inward-looking, various functions

can operate as “silos” — in isolation from one another — resulting

CRS Report RL32388, General Management Laws: Major Themes and Management

Policy Options, by (name redacted).

CRS-4

in coordination problems or missed opportunities. The report

analyzes policy options for Congress to bring an integrated general

management perspective to solve agency management problems.

Making and Measuring Progress. For over two decades, many

executive branch agencies have suffered from persistent, major

management problems. Often these problems relate to areas the

general management laws were intended to address. The report

analyzes potential options for measuring and motivating agency

progress in improving management practices.

Agency “Chief Officers” and Interagency Councils. Statutorily

created “chief officers” (e.g., chief financial officers and chief

acquisition officers) have increased in number and importance in

federal agencies, as in the private sector. Congress also established

interagency councils of these officers. The report analyzes options

for Congress in considering whether additional chief officers and

councils should be established, and how Congress might make the

councils more accountable.

CRS-5

I. Information and Regulatory Management

A. Federal Register Act

Statutory Intent and History

The Federal Register Act was originally legislated in 1935 (49 Stat. 500) to

establish accountability and publication arrangements for presidential proclamations

and executive orders and for federal agency rules and regulations. The centerpiece

of the resulting system is the Federal Register, an executive gazette produced by the

Office of the Federal Register of the National Archives and Records Administration.

It is printed by the Government Printing Office and lately has been available, as well,

in electronic formats (online and via CD-ROM).7

In many respects, the Federal Register Act of 1935 was a response to the

increasing number of regulations, rules, and related administrative actions of the New

Deal era, and the fugitive status of these instruments. The expansion of the federal

government during World War I had resulted in the presidential and agency issuance

of a growing quantity of administrative requirements. Brief experience with a gazette

— The Official Bulletin — had been beneficial, but of temporary, wartime,

duration.8 Its disappearance made a difficult situation worse. A contemporary

observer characterized the operative situation in 1920 as one of “confusion,”9 and

another described the deteriorating conditions in 1934 as “chaos.”10 During the early

days of the New Deal, administrative law pronouncements were in such disarray that,

on one occasion, government attorneys arguing a lawsuit before the Supreme Court

were embarrassed to find their case was based upon a nonexistent regulation,11 and

on another occasion, discovered they were pursuing litigation under a revoked

executive order.

The response was the mandating of the Federal Register. Produced in a

magazine format, it is now published each business day. Soon after enacting the

Federal Register Act, Congress, in 1937, amended it and inaugurated the Code of

Federal Regulations, a useful supplement to the Register (50 Stat. 304). This

cumulation of the instruments and authorities appearing in the gazette contains

almost all operative agency regulations, and is now updated annually.

Commercially produced electronic versions of the Federal Register are available for

purchase from private sector vendors who have introduced value-added features, such as

search capability or annotations, to the basic GPO text.

John Walters, “The Official Bulletin of the United States: America’s First Official

Gazette,” Government Publications Review, vol. 19, May-June 1992, pp. 243-256.

John A. Fairlie, “Administrative Legislation,” Michigan Law Review, vol. 18 (Jan. 1920),

p. 199.

Erwin N. Griswold, “Government in Ignorance of the Law — A Plea for Better

Publication of Executive Legislation,” Harvard Law Review, vol. 48 (Dec. 1934), p. 199.

United States v. Smith, 292 U.S. 633 (1934), appeal dismissed on the motion of the

appellant without consideration by the Court.

CRS-6

Later, the general statutory authority underlying the Federal Register was relied

upon for the creation of other series of publications — the United States Government

Manual, which has been available for public purchase since 1939; the Public Papers

of the Presidents, which were first published in 1960; and the Weekly Compilation

of Presidential Documents, which was begun in the summer of 1965.

Major Provisions

The cumulative and operative authority of the Federal Register Act may be

found in Chapter 15 of Title 44, United States Code. The Office of the Federal

the United States is authorized. Responsibility for the production of the Federal

vested in the Archivist.

The original and two duplicate originals or certified copies of a document

required or authorized to be published in the Federal Register must be filed with the

OFR. Materials so filed are marked with a notation as to the date and hour of receipt.

One copy of filed materials is immediately available for public inspection at the OFR.

Filed materials are transmitted to the Government Printing Office (GPO), which

is responsible for the production and distribution of the Federal Register. The GPO

also prepares, produces, and distributes periodic cumulative indices of the daily

issues of the Register.

Documents which must be published in the Federal Register include:

presidential proclamations and executive orders, except those not

having general applicability and legal effect or effective only against

federal agencies or persons in their capacity as officers, agents, or

employees thereof;12

documents or classes of documents that the President may determine

from time to time have general applicability and legal effect;

documents or classes of documents that may be required to be so

published by act of Congress; and

other documents or classes of documents authorized to be published

by regulations prescribed with the approval of the President.

Conversely, the act declares that “comments or news items of any character may

not be published in the Federal Register” (44 U.S.C. § 1505(b)).

The requirements for filing documents for publication in the Federal Register

may be suspended by the President during “an attack or threatened attack upon the

The Federal Register Act states that “every document or order which prescribes a penalty

has general applicability and legal effect” (44 U.S.C. § 1505).

CRS-7

continental United States.” Such a suspension remains in effect “until revoked by the

President, or by concurrent resolution of the Congress” (44 U.S.C. § 1505(c)).

Federal Register operations are supervised by the Administrative Committee

of the Federal Register, which is chaired by the Archivist of the United States and

includes a Department of Justice officer designated by the Attorney General, and the

Public Printer. The director of the Office of the Federal Register serves as committee

secretary. This panel, with the approval of the President, prescribes the regulations

governing the Federal Register, including such matters as the documents to be

authorized by regulation for publication in the gazette, the manner and form in which

the Register is produced, and certain distribution matters and charges concerning it.

The Administrative Committee, with the approval of the President, also

supervises and manages the production of the Code of Federal Regulations. The

Code is a “complete codification of the documents of each agency of the Government

having general applicability and legal effect, issued or promulgated by the agency by

publication in the Federal Register or by filing with the Administrative Committee,

and are relied upon by the agency as authority for, or are invoked or used by it in the

discharge of, its activities or functions” (44 U.S.C. § 1510(a)). The Office of the

Federal Register prepares and publishes the codifications appearing in the Code.

The Federal Register, the Code of Federal Regulations, and other series of

publications produced pursuant to the general authority of the Federal Register Act

are available to the public through sales, OFR and other websites

([http://www.archives.gov/federal_register/index.htm]), and distribution to federal

depository libraries.

Discussion

While most major federal administrative law instruments — such as executive

orders, presidential proclamations, and agency rules and regulations — are published

in the Federal Register and Code of Federal Regulations, not all such authorities are

so produced. During the past few years, concern has been expressed from time to

time in Congress about certain national security directives of the President not being

subject to accountability or publication under the Federal Register Act. They have

been variously denominated as National Security Decision Memoranda during the

Nixon-Ford Administrations, as Presidential Directives during the Carter

Administration, as National Security Decision Directives during the Reagan

Administration, as National Security Directives during the George H. W. Bush

Administration, and as Presidential Decision Directives by the Clinton

Administration. In 1988, a House subcommittee held hearings on a proposal to

amend the Federal Register Act to provide accountability in the use of these

presidential directives. A complication in so legislating is that these instruments are

usually all security classified. Another type — Homeland Security Presidential

Directives — was launched by President George W. Bush in late October 2002. This

development sparked renewed congressional concern about accountability for these

presidential directives.

CRS-8

Selected Source Reading

U.S. Congress. House. Committee on Government Operations. Executive Orders

and Proclamations: A Study of a Use of Presidential Powers. Committee print.

85th Congress, 1st session. Washington: GPO, 1957.

——. Presidential Directives and Records Accountability Act. Hearing on H.R.

5092. 100th Congress, 2nd session. Washington: GPO, 1989.

CRS Report 98-611. Presidential Directives: Background and Overview, by (name

redacted).

U.S. National Archives and Records Administration. Office of the Federal Register.

Code of Federal Regulations: Title 1 — General Provisions. Washington:

GPO, 1997.

(name redacted)

CRS-9

B. Administrative Procedure Act

Statutory Intent and History

With the advent of the New Deal, greater expectations and reliance were placed

upon the federal government for the achievement of certain political and social

objectives. This required the development of both an expanded administrative law

process and new regulatory agencies. Unlike a number of European states at that

time, the United States did not have in place a sophisticated administrative system

and had to build one. The first step was the passage of the Federal Register Act

(described elsewhere in this compendium) in 1935, which required all federal

agencies to publish notice of their rules, proposed rules, and legal notices in a single,

readily available source, later to be known as the Federal Register.

Although substantial progress was made in uniform public notice and

publication processes for regulation making by the agencies, a single general

management law covering all the agencies was not passed until after World War II.

The Administrative Procedure Act (APA; 60 Stat. 237; 5 U.S.C. § 551 et seq.),

enacted in 1946, is considered the seminal federal administrative legislation of the

modern era. The major contribution of the act was to establish for the first time

minimum procedural requirements for certain types of agency decision making

processes. Its general purposes were to (1) require agencies to keep the public

currently informed of agency organization, procedures, and rules; (2) provide for

public participation in the rulemaking process; (3) prescribe uniform standards for

the conduct of formal rulemaking and adjudicatory proceedings (i.e., proceedings

required by statute to be made on the record after opportunity for agency hearing);

and (4) restate the law of judicial review of agency action.

The act imposes on agencies certain requirements for two modes of agency

decision making: rulemaking and adjudication. In general, the term agency refers to

any authority of the government of the United States, whether or not it is within, or

subject to review by, another agency. Congress, the courts, and the governments of

territories, possessions, and the District of Columbia are excluded.

Major Provisions

The APA has two major subdivisions: Sections 551-559, dealing with general

agency procedures, and Sections 701-706, dealing with judicial review. In addition,

several sections dealing with administrative law judges are scattered throughout Title

5 (Sections 1305, 3105, 3344, 5372, and 7521).

The structure of the APA is shaped around the distinction between rulemaking

and adjudication, with different schemes of procedural requirements prescribed for

each. Rulemaking is agency action that formulates the future conduct of persons,

through the development and issuance of an agency statement designed to implement,

interpret, or prescribe law or policy. It is essentially legislative in nature because of

its future general applicability and its concern for policy considerations.

Adjudication, on the other hand, is concerned with determination of past and present

rights and liabilities. The result of an adjudicative proceeding is the issuance of an

order.

CRS-10

Beyond the distinction between rulemaking and adjudication, the APA

subdivides each of these categories of agency action into formal and informal

proceedings. Whether a particular rulemaking or adjudicatory proceeding is

considered to be “formal” depends on whether the proceeding is required by statute

to be “on the record after opportunity for an agency hearing” (5 U.S.C. § 553(c), §

554(a)). The act prescribes elaborate procedures for both formal rulemaking and

formal adjudication, and relatively minimal procedures for informal rulemaking.

Virtually no procedures are prescribed by the APA for the remaining category of

informal adjudication, which is by far the most prevalent form of governmental

action.

Rulemaking. Section 553 sets the requirements for informal rulemaking (also

known as notice and comment rulemaking). An agency must publish a notice of

proposed rulemaking in the Federal Register, afford interested persons an

opportunity to participate in the proceeding through the submission of written

comments or, at the discretion of the agency, by oral presentation, and when

consideration of the matter is completed, incorporate in the rules adopted “a concise

general statement of their basis and purpose” (5 U.S.C. § 553(c)). A final rule must

be published in the Federal Register “not less than 30 days before its effective date”

(5 U.S.C. § 553(d)). Interested persons have a right to petition for the issuance,

amendment or repeal of a rule (5 U.S.C. § 553(e)). Although the APA does not

specify a minimum period for public comment, at least 30 days have been

traditionally allotted. More recently, Executive Order 1286613 has prescribed that

covered agencies allow at least 60 days. Agencies are free to grant additional

procedural rights, and Congress has at times particularized requirements for certain

agencies or programs.

The APA also provides for formal rulemaking, a procedure employed when

rules are required by statute to be made on the record after an opportunity for agency

hearing. Essentially, this procedure requires that the agency issue its rule after the

kind of trial-type hearings procedures normally reserved for adjudicatory orders

(discussed below).

Adjudication. Sections 554, 556, and 557 apply to formal adjudications (i.e.,

cases for which an adjudicatory proceeding is required by statute to be determined

on the record after an agency proceeding). Sections 556 and 557 spell out the

specific procedures to be utilized in formal adjudication. In brief, a trial type hearing

must be held, presided over by members of the agency or an administrative law judge

(ALJ). Section 556 prescribes the duties of ALJs, the allocation of burden of proof,

and parties’ rights to cross-examination. Section 557 provides that an ALJ must

issue an initial decision, which becomes the agency’s final decision if not appealed.

The record must show the ruling on each finding, conclusion, or exception raised.

Ex parte communications relevant to the merits of a pending formal agency

proceeding are prohibited.

Judicial Review of Agency Action. Sections 701-706 constitute a general

restatement of the principles of judicial review embodied in many statutes and

3 C.F.R., 1993 Comp., pp. 638-649.

CRS-11

judicial decisions; however, they leave the mechanics regarding judicial review to be

governed by other statutes or court rules.

Section 701 establishes a presumption of reviewability of agency actions by

providing that the action “of each authority of the Government of the United States”

is subject to judicial review except where “statutes preclude judicial review,” or

“where agency action is committed to agency discretion by law” (Section

701(a)(1),(2)). The Supreme Court has consistently supported the strong

presumption of reviewability, requiring a “showing of ‘clear and convincing’

evidence of a ... legislative intent to restrict access to judicial review.” (Citizens to

Protect Overton Park v. Volpe, 401 U.S. 402, 410 (1971); Abbott Laboratories v.

Gardner, 387 U.S. 136, 141 (1967); Bowen v. Michigan Academy of Family

Physicians, 476 U.S. 667, 681 (1986)). Moreover, the exception for actions

“committed to agency discretion” is narrowly construed and is applicable only in

“rare instances where statutes are drawn in such broad terms that in a given case,

there is no law to apply” (Volpe, supra, 401 U.S. at 410).

A challenge may be brought by any person who is “adversely affected or

aggrieved” by the action “within the meaning of the relevant statute” (5 U.S.C. §

702). Courts deciding the standing of a person challenging a rule also must comply

with the limitations on federal court jurisdiction imposed by the “case or

controversy” requirement of Article III of the Constitution, which has been

interpreted to require that a party bringing an action in federal court demonstrate an

“injury in fact,” caused by the violation of a legally protected interest, that is concrete

and particularized, and actual or imminent, as opposed to conjectural or hypothetical

(see Valley Forge Christian College v. Americans United for Separation of Church

and State, 454 U.S. 473 (1982); see also Lujan v. Defenders of Wildlife, 504 U.S. 555

(1992)). In addition, parties seeking to establish constitutional standing are required

to show that their injury “fairly can be traced to the challenged action” and that the

injury is likely to be redressed by a favorable judicial decision (Allen v. Wright, 468

U.S. 737 (1984); Valley Forge, supra, at 472). A person challenging an agency rule

who satisfies Section 702*s test is also likely to satisfy the injury requirement for

constitutional standing. Indeed, courts typically merge their discussions of Section

702*s “adversely affected or aggrieved” language with the constitutional injury

requirement (see, e.g., Wilderness Society v. Griles, 824 F.2d 4, 11 (D.C. Cir.

1987)).

In addition to constitutional requirements, the judiciary has developed prudential

rules to constrain the instances in which review may be obtained. Like their

constitutional counterparts, these judicially imposed limits on the exercise of federal

jurisdiction are “founded in concern about the proper — and properly limited — role

of the courts in a democratic society” (see Warth v. Seldin, 422 U.S. 490, 498

(1974)). However, unlike their constitutional counterparts, they may be modified or

abrogated by Congress. The prudential components of the standing doctrine require

that (1) a plaintiff assert his own legal rights and interests rather than those of third

parties; (2) a plaintiff’s complaint be encompassed by the “zone of interests”

protected or regulated by the constitutional or statutory guarantee at issue; and (3)

courts decline to adjudicate “‘abstract questions of wide public significance’ which

amount to ‘generalized grievances’ pervasively shared and most appropriately

addressed in the representative branches” (Valley Forge, supra, at 472).

CRS-12

Any standing inquiry is further complicated in instances when an organization

seeks to challenge agency action. An organization may have standing to sue if it has

been injured as an entity, and may likewise possess standing to sue on behalf of its

members, so long as the members would otherwise have standing to sue in their own

right; the interests the organization seeks to protect are germane to its purpose; and

neither the claim asserted nor the relief requested requires the participation of

individual members (see Hunt v. Washington State Apple Advertising Commission,

432 U.S. 333, 343 (1977)).

The forum for judicial review of agency rules is determined by statute. Statutes

containing judicial review provisions applicable to rulemaking generally call for

direct, pre-enforcement review in the courts of appeals, and usually specify

requirements as to venue, timing of review, and scope of review. If there is no

specifically applicable judicial review provision governing the agency’s rule, a

challenge to the rule will normally be through an action for an injunction or

declaratory relief in a district court. Jurisdiction must be obtained through one of the

general jurisdictional statutes, the most frequently asserted being 28 U.S.C. § 1331,

the so-called “federal question” provision, which gives district courts “original

jurisdiction of all civil actions wherever the matter in controversy ... arises under the

Constitution, laws, or treaties of the United States.” Other jurisdictional provisions

that may be used are 28 U.S.C. § 1337 (actions arising under commerce-related

statutes) and 28 U.S.C. § 1361 (mandamus jurisdiction).

Section 706 sets forth the scope of review of agency actions. In general, the

scope of review depends on the nature of the agency determination under challenge.

Agency conclusions on questions of law are reviewed de novo. When a court

reviews an agency’s construction of a statute it administers, the court is required to

uphold Congress’s intent where Congress has directly spoken to the precise statutory

question at issue. If the statute is silent or ambiguous with respect to the specific

issue, however, the agency’s interpretation of the statute must be upheld if the

agency’s construction of the statute is permissible (see Chevron U.S.A. v. NRDC, 467

U.S. 837 (1984)). The Supreme Court has clarified the limits of this standard, ruling

that Chevron deference applies only in instances when Congress has delegated

authority to an agency to make rules carrying the force of law, and when the agency

interpretation claiming deference was promulgated pursuant to that authority (see

United States v. Mead Corp., 533 U.S. 218, 229 (2001)).

Agency exercises of judgment or discretion, such as in informal rulemaking or

informal adjudication, are reviewed under the “arbitrary, capricious, abuse of

discretion” standard. Under this standard, an agency determination will be upheld

if it is rational, based on a consideration of the relevant factors, and within the scope

of the authority delegated to the agency by Congress. The agency must examine the

relevant data and articulate a satisfactory explanation for its action, including a

rational connection between the facts found and the choices made. A court is not to

substitute its judgment for that of the agency (see Motor Vehicle Mfr’s Assoc. v.

State Farm Mut. Auto Ins. Co., 463, U.S. 29, 42-43 (1983)).

Agency determinations of fact, typically in challenges of agency adjudications,

are reviewed under the “substantial evidence” test when the agency determination is

reviewed on the record of an agency proceeding required by statute (see Consolo v.

CRS-13

FMC, 383 U.S. 607, 618-21 (1966)), citing (Universal Camera v. NLRB, 340 U.S.

474 (1951)).

Discussion

The APA retains its preeminence as the general management law governing

agency decisionmaking by means of rulemaking and adjudication. Essentially

unamended by Congress since 1946, it has maintained its vitality in the face of vast

and fundamental changes in the nature and scope of federal government

responsibilities. In great measure this accommodation has come about because of

judicial rulings that have effected important transformations of the meaning and

scope of its otherwise neutral and spare terminology. The hallmark of our modern

administrative state — agency rulemaking through the process of informal

rulemaking — is a creative judicial cultivation. With the encouragement of the

courts, rulemaking replaced adjudication as the dominant formal decision making

process. Administrative lawmaking was “democratized” in a series of decisions

between 1965 and 1983 that expanded both the obligations of agencies and the role

of reviewing courts. The result has been the transformation, without benefit of

legislative amendment, of informal rulemaking into a new, on-the-record proceeding

that has fostered widespread public participation in the process.

To be sure, Congress has not simply silently acquiesced in this revolutionary

transformation. Although Congress has never undertaken a comprehensive revision

of the APA, it has always recognized that it could do so, and with increasing

frequency, it has supplanted the APA’s requirements with more explicit directives

for particular agencies and programs mirroring the above-described judicial

innovations. Often this legislation has been aimed at formalizing the procedural

protections ensuring effective and meaningful public participation in agency

policymaking. Thus, certain health, environmental, and consumer protection statutes,

for example, contain detailed “hybrid-rulemaking” requirements and procedural as

well as substantive changes.14

Moreover, the deregulation movement of the 1970s and 1980s successfully

focused attention on the economic consequences of regulation and the need for a

broader analytic approach to regulatory decision making that assessed the impacts of

costs and new technologies. The executive branch took the lead by adding new

layers of clearances for rules by executive order that included requirements for

consideration and evaluation of their costs and benefits. (See Executive Orders

12291, 12498, and 12866).15 Proposed regulatory reform legislation in recent

Congresses has included bills that not only would have codified the judicially created

procedural requirements of the last two decades, but also would have required all

See, e.g., 42 U.S.C. § 300g-1(d) (requiring public hearing prior to the promulgation of

regulations pursuant to the Safe Drinking Water Act); 15 U.S.C. § 2605 (providing for

public hearing and opportunity for cross-examination of witnesses prior to promulgation of

regulations under the Toxic Substances Control Act); and 15 U.S.C. § 2058 (providing for

a public hearing before promulgation of rules under the Consumer Product Safety Act).

See 3 C.F.R., 1981 Comp., pp. 127-134; 3 C.F.R., 1985 Comp., pp. 323-325; and 3 C.F.R.,

1993 Comp., pp. 638-649, respectively.

CRS-14

agencies engaged in rulemaking to utilize methodologies requiring detailed risk

assessment and cost benefit analysis for major regulations which would have been

subjected to intense judicial review. While these particular reform efforts have been

unsuccessful, Congress has passed several notable measures, including a mechanism

that subjects all agency rules to congressional review and possible veto; a procedure

to require the General Accounting Office to conduct an independent evaluation of an

agency’s cost-benefit analysis of a proposed or final rule when requested by a chair

or ranking member of a committee of jurisdiction; a process designed to restrict

regulations imposing unfunded costs on state and local governments and the private

sector; and a process designed to ensure that federal agencies use and disseminate

accurate information. There is also an emerging and controversial trend on the part

of agencies to attempt to enhance public participation in the administrative process

by accepting electronically submitted comments.

While the APA’s basic rulemaking model is relatively straightforward, it has

been argued that the additional requirements that have been imposed by Congress,

the executive branch, and the courts have made the rulemaking process rigid and

burdensome upon agencies. In turn, this has led to the argument that rulemaking has

become “ossified,” with agencies either undertaking resource and time intensive steps

to ensure that a rule will withstand increased scrutiny, or simply circumventing the

traditional rulemaking process by issuing policy statements and interpretive rules to

effectuate compliance with a regulatory agenda. Ultimately, however, it would appear

that the current APA scheme is likely to continue to be the key vehicle for

formulating and implementing agency policy directives.

Selected Source Reading

Aman, Alfred C. Jr., and William T. Mayton. Administrative Law and Process.

New York: Matthew Bender, 1993.

Johnson, Stephen M. “The Internet Changes Everything: Revolutionizing Public

Participation and Access to Government Information Through the Internet.”

Administrative Law Review, vol. 50 (spring 1998), pp. 277-337.

Kerwin, Cornelius M. Rulemaking: How Government Agencies Write Law and Make

Policy, 2nd ed. Washington: CQ Press, 1999.

Koch, Charles H. Administrative Law and Practice, 2nd ed., 3 vols. St. Paul, MN:

West Publishing Co., 1997.

Lubbers, Jeffrey S. A Guide to Federal Rulemaking, 3rd ed. Washington: American

Bar Association, 1998.

McGarity, Thomas O. “Some Thoughts on ‘Deossifying’ the Rulemaking Process.”

Duke Law Journal, vol. 41, 1992, pp. 1385-1462.

O’Reilly, James T. “The 411 on 515: How OIRA’s Expanded Information Roles in

2002 Will Impact Rulemaking and Agency Publicity Actions.” Administrative

Law Review, vol. 54 (spring 2002), pp. 835-851.

CRS-15

Pierce, Richard J. Jr. “Seven Ways to Deossify Agency Rulemaking.”

Administrative Law Review, vol. 47 (winter 1995), pp. 59-95.

Shepherd, George B. “Fierce Compromise: The Administrative Procedure Act

Emerges From New Deal Politics.” Northwestern University Law Review, vol.

90 (1996), pp. 1557-1683.

Verkuil, Paul R. “Comment: Rulemaking Ossification — A Modest Proposal.”

Administrative Law Review, vol. 47 (summer 1995), pp. 453-459.

CRS Report RL32339, Federal Regulations: Efforts to Estimate Total Costs and

Benefits of Rules, by (name redacted).

CRS Report RL32356, Federal Regulatory Reform: An Overview, by (name red

acted).

CRS Report RL32240, The Federal Rulemaking Process: An Overview, by (name red

acted).

(name redacted)

CRS-16

C. Federal Records Act and Related Chapters of Title 44

Statutory Intent and History

Proper maintenance of federal records within the departments and agencies has

been legislatively addressed by Congress since the earliest days of the republic.

When chartering the initial departments, for example, Congress authorized the heads

of these entities to issue regulations for, among other matters, the custody, use, and

preservation of the records, papers, and property.16 It was also the responsibility of

these officials to ensure that these regulations were observed in practice.

Through the years, Congress from time to time legislated additional

requirements and administrative arrangements concerning federal records. In 1934,

for instance, a major step was taken with the mandating of the National Archives (48

Stat. 1122).17 The head of this entity, the Archivist of the United States, has

subsequently become a major policy leader regarding the entire life cycle of federal

records, including their (1) creation or collection; (2) processing; (3) transmittal,

including access and dissemination; (4) use; (5) active storage; (6) inactive storage;

and (7) final disposition.18

The Federal Records Act of 1950 (64 Stat. 583) was another milestone. While

it is most often remembered for its placement of the Archivist and the National

Archives under the authority of the Administrator of the General Services

Administration,19 among the statute’s important innovations were:

creation of the National Historical Publications Commission to

“make plans, estimates, and recommendations for such historical

works and collections of sources as it deems appropriate for printing

or otherwise recording at the public expense ... [and to] cooperate

with and encourage both governmental and nongovernmental

institutions, societies, and individuals in collecting and preserving

and, when it deems such action to be desirable, in editing and

publishing the papers of outstanding citizens of the United States

and such other documents as may be important for an understanding

and appreciation of the history of the United States” (44 U.S.C. §§

2501-2506);

See, for example, 1 Stat. 28, 49, and 65; these and similar provisions were consolidated

in the Revised Statutes of the United States (1878) at Section 161, which is presently located

in the United States Code at 5 U.S.C. § 301.

The National Archives was rechartered in the National Archives and Records

Administration Act of 1984 (98 Stat. 2280), which largely constitutes Chapter 21 of Title

44 of the United States Code.

Peter Hernon, “Information Life Cycle: Its Place in the Management of U.S. Government

Information Resources,” Government Information Quarterly, vol. 11, 1994, pp. 143-170.

This relationship ended in 1984 when the National Archives was restored to the status of

an independent agency within the executive branch.

CRS-17

authorizing the analysis, development, promotion, and coordination

of standards, procedures, and techniques “designed to improve the

management of records, to insure the maintenance and security of

records deemed appropriate for preservation, and to facilitate the

segregation and disposal of records of temporary value,” and other

related actions (44 U.S.C. §§ 2904-2906);

authorizing the establishment, maintenance, and operation of records

centers “for the storage, processing, and servicing of records for

Federal agencies pending their deposit with the National Archives

of the United States or their disposition in any other manner

authorized by law” (44 U.S.C. § 2907);

prescribing the records management responsibilities of agency heads

(44 U.S.C. §§ 3101-3107); and

prescribing archival administration responsibilities for the deposit of

federal agency and congressional records “determined by the

Archivist to have sufficient historical or other value to warrant their

continued preservation by the United States Government” in the

National Archives, and other related actions (44 U.S.C. §§ 21072111).

The provisions of the Federal Records Act and those of subsequent records

management statutes are largely codified in chapters of Title 44 of the United States

Code.

Major Provisions

Within Title 44 of the United States Code, Chapters 21, 22, 29, 31, and 33

contain major provisions of records management law. The first of these, Chapter 21,

after prescribing the establishment, organization, and principal leadership of the

National Archives and Records Administration, specifies certain general authority,

duties, and responsibilities of the Archivist. These include procedures and conditions

for the acceptance of records for historical preservation; responsibility for the

custody, use, and withdrawal of records transferred to the Archives; responsibilities

for the preservation, arrangement, duplication, and exhibition of records by the

Archivist; and the procedures and conditions governing the establishment of a

presidential archival depository or presidential library to be accepted and maintained

by the Archivist.20

Chapter 22 contains the provisions of the Presidential Records Act of 1978 (92

Stat. 2523), which marked a major change in federal policy on the custody and

preservation of presidential records. As a consequence of the Watergate incident and

related matters, the official papers and records of President Richard Nixon were

Concerning the acceptance and maintenance of presidential archival depositories by the

Archivist, see CRS Report RS20825, Presidential Libraries: The Federal System and

Related Legislation, by (name redacted).

CRS-18

placed under federal custody by specially legislated arrangements — the Presidential

Recordings and Materials Preservation Act of 1974 (88 Stat. 1695). This statute

requires that these materials remain in Washington, DC, where they are maintained

under the supervision of the Archivist. Thus, Nixon neither could take his

presidential records and documents with him when he left office, nor could place

them in a presidential library outside the nation’s capital.

This 1974 statute also created the temporary National Study Commission on

Records and Documents of Federal Officials (88 Stat. 1698). The panel was tasked

“to study problems and questions with respect to the control, disposition, and

preservation of records and documents produced by on behalf of Federal officials,

with a view toward the development of appropriate legislative recommendations and

other recommendations regarding appropriate rules and procedures with respect to

such control, disposition, and preservation.” Its final report was issued in March

1977.21

Responding partly to some of the commission’s recommendations, Congress

legislated the Presidential Records Act in 1978. After defining “presidential

records,” the statute specifies that all such materials created on or after January 20,

1981, are subject to its provisions. It effectively made presidential records federal

property, to remain under the custody and control of the Archivist when each

incumbent President left the White House. Jimmy Carter was the last occupant of

the Oval Office who could freely take away his records and papers.

Chapter 29, setting out the records management authority and responsibilities

of the Archivist and the Administrator of General Services, contains core provisions

from the Federal Records Act of 1950. Specified here are the objectives of federal

records management, the two officials’ general responsibilities for records

management, and the Archivist’s authority to establish standards for the selective

retention of records, inspect agency records, and establish, maintain, and operate

records centers.

Chapter 31, also containing core provisions from the Federal Records Act,

prescribes the records management responsibilities of the federal agencies, including

the general duties of agency heads, the requirement to establish and maintain “an

active, continuing program for the economical and efficient management of the

records of the agency,” and certain related procedural matters.

Chapter 33 is devoted to the disposal of federal records. It authorizes the

Archivist to issue regulations and utilize a system of records lists and disposition

schedules to eliminate non-current agency records lacking preservation value.

U.S. National Study Commission on Records and Documents of Federal Officials, Final

Report of the National Study Commission on Records and Documents of Federal Officials

(Washington: GPO, 1977). Also see Anna Kasten Nelson, “The Public Documents

Commission: Politics and Presidential Records,” Government Publications Review, vol. 9,

Sept./Oct. 1982, pp. 431-451.

CRS-19

Discussion

Most of the existing statutory law concerning records management was

developed when paper formats dominated federal recordkeeping and production.

During the past few decades, the adequacy of this authority has come into question

as electronic forms and formats have become more prevalent. The many challenges

of the electronic record phenomenon continue to be discussed and evaluated.

General Records Schedule (GRS) 20, a primary, government-wide, records

management directive, has been revised recently, and efforts are underway to develop

an electronic records archive at the National Archives.

Selected Source Reading

National Research Council. Building an Electronic Records Archive at the National

Archives and Records Administration: Recommendations for Initial

Development. Washington: National Academies Press, 2003.

U.S. National Archives and Records Administration.

Records. Washington: GPO, 1992.

Disposition of Federal

——. Guide to Record Retention Requirements in the Code of Federal Regulations.

Washington: GPO, 1986.

(name redacted)

CRS-20

D. Congressional Review of Regulations Act

Statutory Intent and History

The Supreme Court’s acceptance in 1937 of the New Deal’s rejection of passive,

minimalist governance, and its replacement by a more activist governmental

philosophy, signaled the beginning of the era of the administrative state that has seen

the emergence of a pattern of pervasive governmental economic and social

regulation. Since 1937, an unbroken line of Supreme Court and lower court

decisions has provided legitimacy for broad delegations of congressional power to

the executive, and has fostered and nurtured the hallmark of the modern

administrative state, agency lawmaking through the process of informal rulemaking.

With the encouragement of the courts, rulemaking has replaced adjudication as the

dominant formal administrative decision making process.

The necessity to delegate increasing amounts of legislative power to

administrative agencies to accomplish the expanded objective of government, while

at the same time maintaining congressional control and responsibility over the

exercise of the delegated authority, created a constitutional tension, however. This

tension has been manifested over the years by a variety of legislative attempts to

develop a review mechanism that would allow Congress to exercise its oversight

responsibility to assure agency accountability in the exercise of delegated authority.

Initially, Congress increasingly relied on the legislative veto, a device that allowed

it to delegate power conditionally and to retrieve it, or block agency exercise of its

delegated authority, by the action of both houses, one house, a committee, or, at

times, by a committee chairman alone. In 1983, in INS v. Chadha (462 U.S. 919

(1983)), the Supreme Court found all such veto mechanisms to be an unconstitutional

exercise of legislative power because of their failure to follow the Constitution’s

exclusive prescription for lawmaking: bicameral passage and presentment to the

President for his signature or veto.

The immediate consequence of the Supreme Court’s ruling was to force

Congress to rely more heavily on its traditional mechanisms of control of

administrative action, such as the authorization and appropriations process,

committee oversight and investigations, and the confirmation process as means of

restraining perceived regulatory excesses. In addition, regulatory reform proposals

throughout the 1980s and 1990s consistently contained requirements that agencies

perform cost-benefit, cost-effectiveness and risk assessment analyses as integral parts

of their rulemaking processes.

None of these government-wide reforms succeeded until the enactment of the

Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; 110 Stat.

857-874). Subtitle E of the act for the first time established a mechanism by which

Congress can disapprove, on a fast-track, virtually all federal agency rules. Failure

to report a covered rule for congressional review will prevent the rule from becoming

effective. The effectiveness of major rules is stayed for 60 days to allow for

congressional scrutiny. A rule vetoed by the passage of a joint resolution of

disapproval is deemed never to have been effective and an agency may not propose

to issue a substantially similar rule without further congressional authorization.

CRS-21

However, a number of unresolved interpretive issues, as well as certain structural

problems, have limited the effectiveness of this review mechanism.

Major Provisions

The congressional review mechanism, codified at 5 U.S.C. §§ 801-808, requires

that all agencies promulgating a covered rule must submit a report to each house of

Congress and to the Comptroller General (CG) that contains a copy of the rule, a

concise general statement describing the rule (including whether it is deemed to be

a major rule), and the proposed effective date of the rule. A rule cannot take effect

if the report is not submitted (Section 801(a)(1)(A)). Each house must send a copy

of the report to the chairman and ranking minority member of each jurisdictional

committee (Section 801(a)(1)(C)). In addition, the promulgating agency must submit

to the CG (1) a complete copy of any cost-benefit analysis; (2) a description of the

agency*s actions pursuant to the requirements of the Regulatory Flexibility Act and

the Unfunded Mandates Reform Act of 1995; and (3) any other relevant information

required under any other act or executive order. Such information must also be made

“available” to each house (Section 801(a)(1)(B)).

Section 804(3) adopts the definition of rule found at 5 U.S.C. § 551(4) which

provides that the term “means the whole or part of an agency statement of general ...

applicability and future effect designed to implement, interpret, or prescribe law or

policy.”22 The legislative history of Section 551 (4) indicates that the term is to be

broadly construed: “The definition of rule is not limited to substantive rules, but

embraces interpretive, organizational and procedural rules as well.”23 The courts

have recognized the breadth of the term, indicating that it encompasses “virtually

every statement an agency may make,”24 including interpretive and substantive rules,

guidelines, formal and informal statements, policy proclamations, and memoranda

of understanding, among other types of actions.25 Thus a broad range of agency

action is potentially subject to congressional review.

Section 804(3) excludes from the definition “(A) any rule of particular applicability,

including a rule that approves or prescribes for the future rates, wages, prices, services, or

allowance therefore, corporate or financial structures, reorganizations, mergers, or

acquisitions thereof, or accounting practices or disclosures bearing on any of the foregoing;

(B) any rule relating to agency management or personnel; or (C) any rule of agency

organization, or practice that does not substantially affect the rights or obligations of nonagency parties.”

U.S. Attorney General, Manual on the Administrative Procedure Act, 13 (1948).

Avoyelles Sportsmen’s League, Inc., v. Marsh, 715 F.2d 897 (5th Cir. 1983).

See, for example, Chem Service, Inc. v. EPA, 12 F.3d 1256 (3rd Cir. 1993)(memorandum

of understanding); Caudill v. Blue Cross and Blue Shield of North Carolina, 999 F.2d 74

(4th Cir. 1993)(interpretative rules); National Treasury Employees Union v. Reagan, 685

F.Supp 1346 (E.D. La 1988)(federal personnel manual letter issued by the Office of

Personnel Management); New York City Employment Retirement Board v. SEC, 45 F.3d 7

(2nd Cir. 1995)(affirming lower court’s ruling that SEC “no action” letter was a rule within

Section 551(4)).

CRS-22

The Comptroller General and the administrator of the Office of Information and

Regulatory Affairs (OIRA) of the Office of Management and Budget have particular

responsibilities with respect to a “major rule,” defined as a rule that will likely have

an annual effect on the economy of $100 million or more, increase costs of

processing for consumers, industries, or state and governments, or have significant

adverse effects on the economy. The determination of whether a rule is major is

assigned exclusively to the OIRA administrator (Section 804(2)). If a rule is deemed

major by the OIRA administrator, the CG must prepare a report for each

jurisdictional committee within 15 calendar days of the submission of the agency

report required by Section 801 (a)(1) or its publication in the Federal Register,

whichever is later. The statute requires that the CG’s report “shall include an

assessment of the agency’s compliance with the procedural steps required by Section

801(a)(1)(B).” However, the CG has interpreted his duty under this provision

narrowly as requiring that he simply determine whether the prescribed action has

been taken, i.e., whether a required cost-benefit analysis has been provided, and

whether the required actions under the Regulatory Flexibility Act, the Unfunded

Mandates Reform Act of 1995, and any other relevant requirements under any other

legislation or executive orders were taken, not whether the action was properly done

or was in accord with congressional intent.

The designation of a rule as major also affects its effective date. A major rule

may become effective on the latest of the following scenarios: (1) 60 days after

Congress receives the report submitted pursuant to Section 801(a)(1) or after the rule

is published in the Federal Register; (2) if Congress passes a joint resolution of

disapproval and the President vetoes it, the earlier of when one house votes and fails

to override the veto, or 30 days after Congress receives the message; or (3) the date

the rules would otherwise have taken effect (unless a joint resolution is enacted)

(Section 801(a)(3)).

Thus, the earliest a major rule can become effective is 60 days after the

submission of the report required by Section 801(a)(1) or its publication in the

Federal Register, unless some other provision of the law provides an exception for

an earlier date. Three possibilities exist. Under Section 808(2) an agency may

determine that a rule should become effective notwithstanding Section 801(a)(3)

where it finds “good cause in that notice and public procedure thereon are

impracticable, unnecessary, or contrary to the public interest.” Second, the President

may determine that a rule should take effect earlier because of an imminent threat to

health or safety or other emergency; to insure the enforcement of the criminal laws;

for national security purposes; or to implement an international trade agreement

(Section 801(c)). Finally, a third route is available under Section 801(a)(5), which

provides that “the effective date of a rule shall not be delayed by operation of this

chapter beyond the date on which either House of Congress votes to reject a joint

resolution of disapproval under Section 802.” All other rules take effect “as

otherwise allowed by law,” after having been submitted to Congress under Section

801(a)(1) (Section 801(a)(4)).

All covered rules are subject to disapproval even if they have gone into effect.

Congress has reserved to itself a review period of at least 60 days. Moreover, if a

rule is reported within 60 session days of the Senate or 60 legislative days of the

House prior to the date Congress adjourns a session of Congress, the period during

CRS-23

which Congress may consider and pass a joint resolution of disapproval is extended

to the next succeeding session of Congress (Section 801(d)(1)). Such held-over rules

are treated as if they were published on the 15th session day of the Senate and the 15th

legislative day of the House in the succeeding session, and as though a report under

Section 801(a)(1) was submitted on that date (Section 801(d)(2)(A), (e)(2)). But a

held-over rule takes effect as otherwise provided (Section 801(d)(3)). Only the

opportunity to consider and disapprove is extended.

If a joint resolution of disapproval is enacted into law, the rule is deemed not to

have had any effect at any time (Section 801(f)). If a rule that is subject to any

statutory, regulatory, or judicial deadline for its promulgation is not allowed to take

effect, or is terminated by the passage of a joint resolution, any deadline is extended

for one year after the date of enactment of the joint resolution (Section 803). A rule

that does not take effect, or is not continued because of passage of a disapproval

resolution, may not be reissued in substantially the same form. Indeed, any reissued

or new rule that is “substantially the same” as a disapproved rule cannot be issued

unless it is specifically authorized by a law enacted subsequent to the disapproval of

the original rule (Section 801(b)(2)).

Section 802(a) provides a process for an up-or-down vote on a joint resolution

of disapproval within a 60-day period (excluding days when either house is adjourned

for more than three days). The period begins running either on the date on which the

Section 801(a)(1) report is submitted, or when the rule is published in the Federal

The law spells out an expedited consideration procedure for the Senate. If the

committee to which a joint resolution is referred has not reported it out within 20

calendar days, it may be discharged from further consideration by a written petition

of 30 Members of the Senate, at which point the measure is placed on the calendar.

After committee report or discharge, it is in order at any time for a motion to proceed

to consideration. All points of order against the joint resolution (and against

consideration of the measure) are waived, and the motion is not subject to

amendment or postponement, or to a motion to proceed to other business. If the

motion to consider is agreed to, it remains as unfinished business of the Senate until

disposed of (Section 802(d)(1)). Debate on the floor is limited to 10 hours.

Amendments to the resolution and motions to postpone or to proceed to other

business are not in order (Section 802(d)(2)). At the conclusion of debate, an up-ordown vote on the joint resolution is to be taken (Section 802(d)(3)).

There is no special procedure for expedited consideration and processing of

joint resolutions in the House. But if one house passes a joint resolution before the

other house acts, the measure of the other house is not referred to a committee. The

procedure of the house receiving a joint resolution “shall be the same as if no joint

resolution had been received from the other house, but the vote on final passage shall

be on the joint resolution of the other house” (Section 802(f)(1)(2)).

Section 805 precludes judicial review of any “determination, finding, action or

omission under this chapter.” This would insulate from court review, for example,

a determination by the OIRA administration that a rule is major or not, a presidential

determination that a rule should become effective immediately, an agency

CRS-24

determination that “good cause” requires a rule to go into effect at once, or a question

as to the adequacy of a Comptroller General’s assessment of an agency’s report.

Discussion

As of January 14, 2004, the Comptroller General had submitted reports pursuant

to Section 801(a)(2)(A) to Congress on 488 major rules.26 In addition, GAO has

cataloged the submission of 32,865 non-major rules as required by Section

801(a)(1)(A). To date, 29 joint resolutions of disapproval have been introduced

relating to 21 rules. One rule has been disapproved: the Occupational Safety and

Health Administration’s (OSHA’s) ergonomics standard in March 2001. A second

rule, the Federal Communication Commission’s (FCC’s) rule relating to broadcast

media ownership, was disapproved by the Senate on September 16, 2003 but was not

acted upon by the House.

After eight years, the limited use to which the rulemaking review mechanism

has been put does not appear to be attributable to a lack of familiarity with the law,

but rather to a number of other factors. Some have argued that agencies are more

carefully assessing their regulations to avoid possible congressional disapproval

resolutions. Others maintain that the current review process discourages utilization

of the act. These critics point to a number of interpretive issues concerning the scope

of the law’s coverage, the judicial enforceability of its key requirements, and whether

a disapproval resolution may be directed at part of a rule as factors which introduce

uncertainties into the use of the disapproval resolution process.

Specific problems identified by critics of the current process include (1) the lack

of a screening mechanism to identify rules that require congressional review; (2) the

absence of an expedited review procedure in the House of Representatives; (3) the

deterrent effect of the ultimate need for a supermajority of both houses to veto a rule;

(4) the reluctance to disapprove an omnibus rule where only a part of the rule raises

objections; (5) the uncertainty of which rules are covered by the act; (6) the

uncertainty whether the failure to report a covered rule to Congress can be reviewed

and sanctioned by a court; and (7) the scope of the limitation that precludes an agency

from promulgating a “substantially similar rule” after the disapproval of a rule.

Perceived agency failures to report rules covered by the CRA for review and the lack

of any basis to timely challenge the substantiality of agency cost-benefit analyses

were the subject of oversight hearings in both houses during the 106th Congress. A

product of those inquiries was the passage of the Truth in Regulating Act of 2000,

which required the Comptroller General to conduct an independent evaluation of an

agency’s cost-benefit assessment accompanying a proposed or final economically

significant rule when requested by a chair or ranking minority member of a

committee of jurisdiction. The CG’s evaluations were to be completed within 180

days of the request. Although the CG’s evaluations were not integrated to coincide

with time requirements of the CRA, they could have provided a basis for prompting

review action under this mechanism. However, no monies were ever appropriated

for the pilot program, and its authorization expired in January 2004.

U.S. General Accounting Office, Reports on Federal Agency Major Rules, available at

[http://www.gao.gov/decisions/majrule/majrule.htm], visited Jan. 22, 2004.

CRS-25

Two bills have been introduced in the 108th Congress to address some of the

deficiencies cited by critics of the review mechanism. H.R. 110 would require that

all rules encompassed by the definition of rule in 5 U.S.C. § 551(4) cannot “have the

force and effect of law” unless they are enacted into law by means of expedited

consideration procedures established for each house by the proposal. The bill would

apparently displace the current CRA mechanism. H.R. 3356 would amend the CRA

by establishing a Joint Administrative Procedures Committee (JAPC) composed of

24 Members, 12 from each house, which would act as an oversight and screening

body for Congress with respect to existing and proposed major rules. The bill also

would provide for expedited consideration procedures for joint resolutions of

disapproval for the House of Representatives comparable to those of the Senate;

authorize the JACP, within 30 days after the required report to Congress was

received, to report a committee resolution recommending that each standing

committee with jurisdiction to which such report was provided report a joint

resolution of disapproval; and would allow an agency to reissue or promulgate a new

rule to replace a disapproved rule if it carried out the recommendation, if any, of the

JACP in the report submitted by the joint committee to the committees of jurisdiction

recommending disapproval action. Neither of the bills has as yet received committee

action.

Selected Source Reading

Cohen, Daniel and Peter L. Strauss. “Congressional Review of Agency

Regulations.” Administrative Law Review, vol. 49 (winter 1997), pp. 95-110.

CRS Report RL30116. Congressional Review of Agency Rulemaking: An Update

and Assessment After Nullification of OSHA’s Ergonomics Standard, by (name

redacted).

Parks, Julie A. “Lessons in Politics: Initial Use of the Congressional Review Act.”

Administrative Law Review, vol. 55 (2003), pp. 187-210.

Pfohl, Peter A. “Congressional Review of Agency Rulemaking: The 104th Congress

and the Salvage Timber Directive.” Journal of Law and Politics, vol. 14

(winter 1998), pp. 1-31.

Rosenberg, Morton. “Whatever Happened to Congressional Review of Agency

Rulemaking?: A Brief Overview, Assessment, and Proposal for Reform.”

Administrative Law Review, vol. 51 (fall 1999), pp. 1051-1092.

(name redacted)

CRS-26

E. Freedom of Information Act

Statutory Intent and History

The Freedom of Information (FOI) Act was originally adopted by Congress in

1966 (80 Stat. 250) and was codified in 1967 (81 Stat. 54; 5 U.S.C. § 552), when it

also became operative law. As enacted, the FOI Act replaced the public information

section of the Administrative Procedure Act (APA) (60 Stat. 237), which was found

to be ineffective in providing the public with a means of access to unpublished

records of federal departments and agencies. Subsection (a) of the FOI Act reiterated

the requirements of the APA public information section that certain operational

information — e.g., organization descriptions, delegations of final authority, and

substantive rules of general policy — be published in the Federal Register.

Subsection (b) statutorily established a presumptive right of access by any

person — individual or corporate, regardless of nationality — to identifiable,

existing, unpublished records of federal departments and agencies without having to

demonstrate a need or even a reason for such a request. Subsection (b)(1)-(9) lists

nine categories of information that may be exempted from the rule of disclosure. The

burden of proof for withholding material sought by the public was placed upon the

government. Denials of requests could be appealed to the head of the agency holding

the sought records, and ultimately pursued in federal district court. The law specifies

the direct costs which agencies may recover when responding to requests for records.

The product of 11 years of investigation and deliberation in the House of

Representatives and half as many years of consideration in the Senate, the FOI Act

was legislated by Congress in the face of considerable opposition by the executive

departments and agencies. This opposition produced a hostile environment for the

development, passage, and early administration of the statute. As a result, portions

of the law have been subjected to a high judicial gloss for reasons of both

clarification and interpretation. To maintain faithful administration of the FOI Act

and to preserve its purpose, Congress has found it necessary to conduct vigorous

oversight of its implementation and, on four occasions, to amend its provisions.

Reporting in 1972 on the initial implementation of the statute, a House oversight

committee concluded that the “efficient operation of the Freedom of Information Act

has been hindered by 5 years of foot-dragging by the Federal bureaucracy ... of two

administrations.”27 To remedy the situation, the following amendments to the FOI

Act were approved in 1974 (88 Stat. 1561): (1) a request need only “reasonably

describe” the material being sought; (2) only the direct costs of search for and

duplication of requested records could be recovered by agencies; (3) documents

could be furnished without charge or at reduced cost if doing so would be in the

public interest; (4) a court might inspect records in camera when making a

determination concerning their exemption from disclosure; (5) response to an initial

request must be made within 10 working days, and to an administrative appeal

U.S. Congress, House Committee on Government Operations, Administration of the

Freedom of Information Act, H.Rept. 92-1419, 92nd Cong., 2nd sess. (Washington: GPO,

1972), p. 8.

CRS-27

request, within 20 working days; (6) responsive pleading to an FOI Act lawsuit must

be made within 20 days; (7) complainants who substantially prevail in FOI Act

lawsuits may be awarded court costs and attorney fees; and (8) any segregable portion

of a requested record shall be disclosed after exempt parts are deleted. The

amendments also expanded the definition of agency for FOI Act matters, required

agencies to report annually on FOI Act administration and operations, and clarified

two of the statute’s exemptions.

In 1976, an FOI Act amendment clarifying the language of the third exemption

to the rule of disclosure was attached to the Government in the Sunshine Act, another

open government law (90 Stat. 1241, at 1247).

Additional amendments to the FOI Act were enacted in 1986 as a rider to an

omnibus anti-drug abuse law (100 Stat. 3207-48). These modifications strengthened

protections concerning law enforcement records and revised the fee and fee waiver

provisions of the FOI Act. In this latter regard, separate fee arrangements were

prescribed when records are requested (1) for commercial use; (2) by an educational

or noncommercial scientific institution or a news media representative; and (3) by all

others besides these types of requesters. The Office of Management and Budget was

mandated to issue government-wide fee and fee waiver guidelines.28

The most recent amendment of the FOI Act occurred in 1996 during the closing

weeks of the 104th Congress. These amendments (110 Stat. 3048), addressing

shortcomings in administration as well as the new challenges posed by electronic

forms and formats, inclusively defined covered records, required materials to be

provided in the form or format requested, increased the initial response period from

10 to 20 days, encouraged agencies to maintain multitrack processing systems based

upon the complexity of requests received, established expedited processing in cases

where a “compelling need” is demonstrated, and modified agency reporting

requirements, among other changes.

Major Provisions

Subsection (a) of the FOI Act requires that certain operational information —

e.g., organization descriptions, delegations of final authority, and substantive rules

of general policy — be published in the Federal Register.

Subsection (b) prescribes a procedure whereby any person may request access

to identifiable, existing, unpublished records of the federal departments and agencies.

No need, ‘or even a reason’, for such a request must be demonstrated. The burden

of proof for withholding material sought by the public is placed upon the

government.

Although the statute specifies nine categories of information which may be

protected from disclosure, these exemptions do not require agencies to withhold

records, but merely permit access restriction. Allowance is made in the law for the

These guidelines are found in the Federal Register, vol. 52, Mar. 27, 1987, pp. 1001210020.

CRS-28

exemption of (1) information properly classified for national defense or foreign

policy purposes as secret under criteria established by an executive order; (2)

information relating solely to agency internal personnel rules and practices; (3) data

specifically excepted from disclosure by a statute which either requires that matters

be withheld in a non-discretionary manner, or establishes particular criteria for

withholding, or refers to particular types of matters to be withheld; (4) trade secrets

and commercial or financial information obtained from a person and privileged or

confidential; (5) inter- or intra-agency memoranda or letters which would not be

available by law except to an agency in litigation; (6) personnel, medical, and similar

files the disclosure of which would constitute an unwarranted invasion of personal

privacy; (7) certain kinds of investigatory records compiled for law enforcement

purposes; (8) certain information relating to the regulation of financial institutions;

and (9) geological and geophysical information and data, including maps, concerning

oil and gas wells. Disputes over the availability of agency records may ultimately be

settled in court.

Agencies responding to FOI Act requests are permitted by the statute to charge

fees for certain activities — document search, duplication, and review — depending

on the type of requester: a commercial user; an educational or noncommercial

scientific institution, whose purpose is scholarly or scientific research; a news media

representative; or the general public. However, requested records may be furnished

by an agency without any charge or at a reduced cost, according to the law, “if

disclosure of the information is in the public interest because it is likely to contribute

significantly to public understanding of the operations or activities of the government

and is not primarily in the commercial interest of the requester.” Both the Office of

Management and Budget and the Department of Justice coordinate FOI Act policy

and activities within the executive branch.

Discussion

The effective operation of the FOI Act owes much to diligent congressional

oversight and corrective amendment of the statute. Initial agency hostility to the

statute has subsided over the subsequent 35 years, but some agency administrative

practices adverse to the effective operation of the law continue to be problematic.

Ongoing judicial scrutiny and interpretation is closely watched by Congress for

departures from congressional intent. Apart from these continuing challenges,

information developments, such as more widespread government use of e-mail, could

prompt congressional review of whether additional FOI Act adjustments may be

needed.

Selected Source Reading

Foerstel, Herbert N. Freedom of Information and the Right to Know. Westport, CT:

Greenwood Press, 1999.

Hammitt, Harry A., David L. Sobel, and Mark S. Zaid, eds. Litigation Under the

Federal Open Government Laws 2002. Washington: Electronic Privacy

Information Center, 2002.

CRS-29

U.S. Congress. House. Committee on Government Operations [and] Senate

Committee on the Judiciary. Freedom of Information Act and Amendments of

1974 (P.L. 93-502). Source Book: Legislative History, Texts, and Other

Documents. Joint committee print. 94th Congress, 1st session. Washington:

GPO, 1975.

U.S. Congress. House. Committee on Government Reform. A Citizen’s Guide on

Using the Freedom of Information Act and the Privacy Act of 1974 to Request

Government Records, H.Rept. 108-172. 108th Congress, 1st session.

Washington: GPO, 2003.

U.S. Congress. Senate Committee on the Judiciary. Freedom of Information Act

Source Book: Legislative Materials, Cases, Articles. S.Doc. 93-82. 93rd

Congress, 2nd session. Washington: GPO, 1974.

U.S. General Accounting Office. Information Management: Progress in

Implementing the 1996 Electronic Freedom of Information Act Amendments.

GAO-01-378. March 2001.

(name redacted)

CRS-30

F. Privacy Act

Statutory Intent and History

In the Privacy Act of 1974 (5 U.S.C. § 552a) Congress mandated personal

privacy protection in several regards concerning federal agency operations and

practices. Its eclectic provisions can be traced to several contemporaneous events

prompting congressional interest in securing personal privacy.

Since the years of the late 19th century, various developments — not the least

of which the introduction of new, intrusive technologies — have contributed to more

disparate understandings of the concept of privacy and infringements upon it.

Congress made an initial effort at legislating a new kind of privacy protection in 1970

when enacting the Fair Credit Reporting Act regulating the collection and

dissemination of personal information by consumer reporting entities (84 Stat. 1128;

15 U.S.C. § 1681 et seq.).

With the Crime Control Act of 1973, Congress prohibited federal personnel and

state agencies receiving law enforcement assistance funds pursuant to the statute

from making unauthorized disclosures of personally identifiable criminal history

research or statistical information. It also permitted “an individual who believes that

criminal history information concerning him contained in an automated system is

inaccurate, incomplete, or maintained in violation of this [law] ... to review such

information and to obtain a copy of it for the purpose of challenge or correction” (87

Stat. 197, at 215-216; 42 U.S.C. § 3789g).

That same year, the Advisory Committee on Automated Personal Data Systems,

established by Secretary of Health, Education, and Welfare Elliot L. Richardson in

early 1972, offered an important consideration. The panel’s July 1973 final report

recommended “the enactment of legislation establishing a Code of Fair Information

Practice for all automated personal data systems.” Such a code would: punish unfair

information practice with civil and criminal penalties; provide injunctive relief to

prevent violations of safeguard requirements; empower individuals to bring suits for

unfair information practices to recover actual, liquidated, and punitive damages, in

individual or class actions; and allow the recovery of reasonable attorneys’ fees and

other costs of litigation incurred by individuals who bring successful suits.29

Congressional efforts to legislate notice, access, and emendation arrangements

for individuals concerning personally identifiable records maintained on these

individuals by federal departments and agencies began in the House in June 1972, but

did not extend beyond the subcommittee hearing stage during the 92nd Congress.

However, a few days before these inaugural House hearings on legislation that would

evolve into the Privacy Act, a burglary occurred at Democratic National Committee

headquarters. It was the beginning of the Watergate incident, which would

U. S. Department of Health, Education, and Welfare, Secretary’s Advisory Committee on

Automated Personal Data Systems, Records, Computers, and the Rights of Citizens

(Washington: GPO, 1973), pp. xxiii and 50.

CRS-31

significantly affect attitudes toward privacy protection legislation and the leadership

for such legislation.

Legislation leading to the enactment of the Privacy Act began in the House

largely to create a procedure whereby individuals could learn if federal agencies

maintained files on them, review the contents of the records in these files, correct

inaccuracies they contained, and know how this information was being used and by

whom. In the Senate, a privacy protection bill sponsored by Senator Sam Ervin Jr.,

initially sought largely to establish a Federal Privacy Board and to create standards

and management systems for handling personally identifiable information in federal

agencies, state and local governments, and other organizations. Other aspects of

houses of Congress, and then were reconciled in a somewhat unusual manner to

create an amalgamated bill acceptable to the House, the Senate, and the President.

House hearings began in mid-February 1974 under Representative William S.

Moorhead, chairman of the Subcommittee on Foreign Operations and Government

Information of the Committee on Government Operations, and a principal manager

of the legislation. The subcommittee held markup discussions in May, June, and

July. These deliberations resulted in a clean bill (H.R. 16373), which was introduced

by Representative Moorhead with 13 bipartisan co-sponsors in mid-August and

favorably reported by the subcommittee without a dissenting vote. The Committee

on Government Operations considered the legislation in mid-September, substituted

revised text for the original language, and favorably reported it. President Gerald

Ford, who had recently succeeded to the Oval Office after President Richard Nixon’s

early August resignation, endorsed the House bill in an October 9 statement.30 The

measure was considered by the House on November 20 and 21, and approved, with

amendments, on a 353-1 yea-and-nay vote.31

A somewhat different counterpart privacy proposal emerged in the Senate.

Senator Ervin introduced his bill (S. 3418) on May 1, 1974, with bipartisan

cosponsorship. Hearings on this and related legislation occurred in June. During

June, July, and August, staff of the Senate Committee on Government Operations,

its Ad Hoc Subcommittee on Privacy and Information Systems, and the

Subcommittee on Constitutional Rights of the Committee on the Judiciary — all

panels chaired by Senator Ervin — further refined the language of the bill. In a midAugust committee markup, a staff-developed version of the measure was amended

and favorably reported to the Senate.

The new text of the bill would have established the Privacy Protection

Commission, composed of five members appointed by the President from private life

and subject to Senate approval. The commission would have been responsible for

compiling and publishing an annual directory of information systems subject to the

provisions of the bill, enforcing the legislation, and developing model guidelines for

U.S. Office of the President, Public Papers of the Presidents of the United States: Gerald

R. Ford, 1974, Book I (Washington: GPO, 1976), pp. 243-244.

Congressional Record, vol. 120, Nov. 20, 1974, pp. 36643-36660; ibid., Nov. 21, 1974,

pp. 36955-36977.

CRS-32

its implementation, including the conduct of research in this regard. The bill also

would have established federal agency standards and management systems for

handling information relating to individuals. These included fair information

practice principles, disclosure standards, mailing list restrictions, and civil and

criminal penalties.

On November 21, the Senate considered the Ervin legislation; amendments

developed by committee staff and the Office of Management and Budget (OMB)

were adopted, and the resulting version of the legislation was approved.32 The

following day, the Senate took up the House counterpart bill, struck its language and

substituted in lieu thereof the language of the Ervin bill, and approved the amended

version of the House bill.33

With only a few weeks remaining before the 93rd Congress would adjourn sine

die, House and Senate managers found they had very little time to reconcile the two

differing bills. There was, however, strong desire for the passage of such legislation,

not only as a so-called Watergate reform, but also as a tribute and memorial to

Senator Ervin, who was retiring from congressional service. Consequently,

Representative Moorhead and Senator Ervin, with the concurrence of their respective

committees, agreed to the rare arrangement of having their committee staffs negotiate

a mutually agreeable legislative measure. After this effort reduced 108 substantive

differences to eight, the leaders of the respective House and Senate committees

brought those to resolution.34 In lieu of a conference committee report, a staff

analysis of the compromise legislation was produced.35 The major concession was

the relegation of the enforcement commission to the status of a temporary national

study commission. Its oversight responsibilities were vested in OMB, but without

enforcement authority.

On December 11, the House adopted the Senate bill after striking its original

language and inserting in lieu thereof provisions of its own bill.36 The Senate

concurred in the House amendment by passing its own amendment on a 77-8 vote on

December 17, clearing the measure for further House action.37 The following day,

the House agreed to the Senate amendments with an amendment of its own,38 and the

Senate concurred with the House amendments the same day, clearing the measure for

the President’s signature.39 The Privacy Act was signed into law by President Ford

on December 31, 1974 (88 Stat. 1896; 5 U.S.C. § 552a). In his signing statement, the

President said the new law “signified an historic beginning by codifying fundamental

Congressional Record, vol. 120, Nov. 21, 1974, pp. 36882-36921.

Ibid., Nov. 22, 1974, pp. 37064-37069.

Ibid., Dec. 17, 1974, p. 40400.

See ibid., pp. 40405-40408.

Ibid., Dec. 11, 1974, pp. 39200-39204.

Ibid., Dec. 17, 1974, pp. 40397-40413.

Ibid., Dec. 18, 1974, pp. 40879-40886.

Ibid., pp. 40730-40731.

CRS-33

principles to safeguard personal privacy in the collection and handling of recorded

personal information by federal agencies.”40

Major Provisions

The Privacy Act provides privacy protection in several ways. First, it sustains

some traditional major privacy principles. For example, an agency shall “maintain

no record describing how any individual exercises rights guaranteed by the First

Amendment unless expressly authorized by statute or by the individual about whom

the record is maintained or unless pertinent to and within the scope of an authorized

law enforcement activity” (5 U.S.C. § 552(e)(7)).

Second, similar to the Fair Credit Reporting Act, the Privacy Act provides an

individual who is a citizen of the United States, or an alien lawfully admitted for

permanent residence, with access and emendation arrangements for records

maintained on him or her by most, but not all, federal agencies. General exemptions

in this regard are provided for systems of records maintained by the Central

Intelligence Agency and federal criminal law enforcement agencies.

Third, the statute embodies a number of principles of fair information practice.

For example, it sets certain conditions concerning the disclosure of personally

identifiable information; prescribes requirements for the accounting of certain

disclosures of such information; requires agencies to “collect information to the

greatest extent practicable directly from the subject individual when the information

may result in adverse determinations about an individual’s rights, benefits, and

privileges under Federal programs”; requires agencies to specify their authority and

purposes for collecting personally identifiable information from an individual;

requires agencies to “maintain all records which are used by the agency in making

any determination about any individual with such accuracy, relevance, timeliness,

and completeness as is reasonably necessary to assure fairness to the individual in the

determination”; and provides civil and criminal enforcement arrangements.

Discussion

Since its enactment, the Privacy Act has been amended on five occasions. In

1982, the Debt Collection Act added a new exception to the disclosure prohibition

for disclosures made to consumer credit reporting agencies (96 Stat. 1749, adding 5

U.S.C. § 552a(b)(12)). That same year, the Congressional Reports Elimination Act

changed the annual report requirement of the Privacy Act and modified the provision

for publication of agency systems of records (96 Stat. 1819, at 1821-1822, modifying

5 U.S.C. § 552a(e)(4) and (p)). In 1984, the Central Intelligence Agency Information

Act resolved a long-standing controversy by specifying that the Privacy Act is not

authority “to withhold from an individual any record which is otherwise accessible

to the individual under the provisions of” the Freedom of Information Act (96 Stat.

2209, at 2211-2212, adding 5 U.S.C. § 552a(q)(2)). Amendments in 1988 (102 Stat.

2507, adding 5 U.S.C. § 552a(o),(p),(q), and (u), and amending 5 U.S.C. § 552a(a),

Public Papers of the Presidents of the United States: Gerald R. Ford, 1975, Book I, pp.

1-2.

CRS-34

(e), and (v)) and 1990 (104 Stat. 1388-334, modifying 5 U.S.C. § 552a(p))

established new procedures and data protection boards to ensure privacy, integrity,

and verification of data disclosed for computer matching.

Perhaps the facet of the Privacy Act that has been the most successful is its

access procedure. The volume of access requests by record subjects has grown

steadily, for the most part, since the Privacy Act was first implemented. It is,

however, about a third of the access request volume of the Freedom of Information

Act. Moreover, it appears that the total denial caseload is small in proportion to

request volume.

Similarly, the volume of requests to amend personal records is also steadily

growing, though it is not nearly so great as the volume of access requests, and the

total denial caseload is small in proportion to the amendment request volume.

In a June 2003 report, the General Accounting Office urged improved leadership

and guidance by the Office of Management and Budget to improve agency

compliance with the Privacy Act. Around this same time, as public revelations about

the efforts of some agencies to engage in data mining for homeland security purposes

— searching private sector databases for personal information — became known,

some urged amendment of the Privacy Act to clarify its scope regarding such

practices.

Selected Source Reading

Hammitt, Harry A., David L. Sobel, and Mark S. Zaid, eds. Litigation Under the

Federal Open Government Laws 2002. Washington: Electronic Privacy

Information Center, 2002.

U.S. Congress. House. Committee on Government Reform. A Citizen’s Guide on

Using the Freedom of Information Act and the Privacy Act of 1974 to Request

Government Records. H.Rept. 108-172. 108th Congress, 1st session.

Washington: GPO, 2003.

U.S. Congress. Senate Committee on Government Operations [and] House

Committee on Government Operations. Legislative History of the Privacy Act

of 1974: S. 3418 (Public Law 93-579), Source Book on Privacy. Joint

committee print. 94th Congress, 2nd session. Washington: GPO, 1976.

U.S. General Accounting Office. Privacy Act: OMB Leadership Needed to Improve

Agency Compliance. GAO-03-304. June 2003.

U.S. Privacy Protection Study Commission. Personal Privacy in an Information

Society. Washington: GPO, 1977.

_____. The Privacy Act of 1974: An Assessment, Appendix 4. Washington: GPO,

1977.

(name redacted)

CRS-35

G. Federal Advisory Committee Act

Statutory Intent and History

Congress formally acknowledged the merits of using advisory committees to

obtain expert views drawn from business, academic, government, and other interests

when it enacted the Federal Advisory Committee Act (FACA) in 1972 (5 U.S.C.

Appendix; 86 Stat. 700).

The legislative history pertaining to FACA reveals that Congress had two major

concerns about advisory committees before 1972. The first concern was that the

public perceived many advisory committees as duplicative and inefficient, and

otherwise lacking adequate controls or oversight. The second concern was the

widespread belief that advisory committees did not adequately represent the public

interest, and that committee meetings were too often closed to the public.

Congressional enactment of FACA established the first requirements for the

management and oversight of federal advisory committees to ensure impartial and

relevant expertise. As required by FACA, the General Services Administration

(GSA) administers and provides management guidelines for advisory committees.

GSA also submits an annual report to the President and Congress, based on the

information provided by the federal agencies concerning the meetings, costs, and

membership of advisory committees. During FY2003, GSA reported a total of 953

advisory committees, with 31,385 individuals serving as members during the year.

Related expenditures of $282.5 million were used in FY2003 to provide member

compensation, travel and per diem expenses, and other administrative costs

associated with advisory committees. On March 14, 2000, GSA announced the

elimination of its annual report on advisory committees, relying instead on its website

to make available the detailed reports covering each committee’s activities during the

fiscal year.41 GSA also issues an annual summary report for Congress pertaining to

advisory committee management and performance.

Major Provisions

FACA requires that the advice provided by advisory committees be objective

and accessible to the public. Each advisory committee meeting is presumptively

open to the public, with certain exceptions. Adequate notice of meetings must be

published in advance in the Federal Register. Subject to the requirements of the

Freedom of Information Act, all papers, records, and minutes of meetings must be

made available for public inspection.

FACA contains guidelines for membership, mandating that any legislation

establishing an advisory committee be “fairly balanced in terms of the points of view

represented and the functions to be performed,” and that the committee’s

recommendations not be inappropriately influenced by the appointing authority or by

any special interest.

The GSA website is available at [http://fido.gov/facadatabase], visited Dec. 11, 2003.

CRS-36

Each advisory committee must file a charter containing its mandate and duties,

frequency of meetings, membership, and the agency to which, or official to whom,

the committee reports. The act requires the Library of Congress to maintain a

depository of committee reports, papers, and charters. Pursuant to FACA, each

advisory committee goes out of existence after two years unless its charter is renewed

or is otherwise prescribed by statute.

Discussion

Since the enactment of FACA in 1972, congressional oversight hearings have

revealed that, while the goals of FACA are still relevant, some of its provisions have

occasionally needed clarification. From 1983 through 1989, legislation was

introduced in the Senate to strengthen FACA’s management controls, as well as to

establish new ethical, financial, and conflict of interest disclosure requirements for

committee members.42 These proposed amendments were never enacted, in part due

to the stringent disclosure requirements required of potential committee members.

In 1997, FACA was amended to provide for increased public participation in

activities by committees created by the National Academy of Sciences and the

National Academy of Public Administration in support of executive branch decision

making processes.43

Because federal agencies needed clarification of FACA’s statutory requirements,

GSA began issuing administrative and interpretive guidelines in 1983 pertaining to

the implementation of FACA. These final rules provide guidance to agency

committee management officers (CMOs) for the establishment and management of

advisory committees. On January 14, 2000, GSA issued a proposed rule for revised

management guidelines in the Federal Register.44 The following year, on July 19,

2001, GSA issued its final rule providing additional guidance to CMOs based on

statutory provisions and internal agency procedures.45

In order to curtail the proliferation of advisory committees, President William

Clinton issued E.O. 12838 in 1993, requiring the elimination of one-third of the

advisory committees not created by statute.46 In addition, executive branch

departments and agencies were proscribed from administratively creating new

advisory committees without the approval of the Director of the Office and

Management and Budget (OMB). The following year, as part of the National

Performance Review, Vice President Albert Gore issued a memorandum indicating

each agency should reduce advisory committee costs by 5%. The memorandum also

stated that President Clinton would not support legislation establishing new advisory

S. 1641 was introduced on July 19, 1983, and S. 2127 was introduced on Nov. 17, 1983;

S. 2721 was introduced on Aug. 10, 1988, and S. 444 was introduced on Feb.23, 1989.

111 Stat. 2689.

65 Federal Register 2504.

41 C.F.R. § 102-3 (2003, pp. 11-44).

3 C.F.R., 1994 Comp., p. 590.

CRS-37

committees or exemptions from FACA.47 On October 5, 1994, OMB issued Circular

No. A-135, entitled “Management of Federal Advisory Committees.” This circular

requires OMB and GSA to monitor agency compliance with E.O. 12838 to reduce

the number of advisory committees.

Selected Source Reading

CRS Report RL30260, Federal Advisory Committees: A Primer, by (name redacted).

U.S. Congress, House Committee on Government Reform and Oversight,

Subcommittee on Government Management, Information, and Technology,

Oversight of the Federal Advisory Committee Act, hearings, July 14, 1998, 105th

Cong., 2nd sess. Washington: GPO, 1999.

U.S. General Accounting Office, Federal Advisory Committee Act: Views of

Committee Members and Agencies on Federal Advisory Committee Issues,

GAO Report GAO/GGD-98-147. Washington: GAO, 1998.

U.S. General Accounting Office, Federal Research: The National Academy of

Sciences and the Federal Advisory Committee Act, GAO Report GAO/RCED99-17. Washington: GAO, 1988.

(name redacted)

U.S. Office of the Vice President, “Memorandum for the Heads of Executive Departments

and Agencies on the Management of Federal Advisory Committees,” June 28, 1994, Annual

Report of the President on Federal Advisory Committees (Washington: GPO, 1995), p. A7.

CRS-38

H. Government in the Sunshine Act

Statutory Intent and History

The Government in the Sunshine Act (90 Stat. 1241; 5 U.S.C. § 552b) was

initially enacted in 1976. It requires collegially headed federal executive agencies

whose members are appointed by the President with the advice and consent of the

Senate to hold certain meetings in public. The act applies to meetings during which

deliberations determine, or result in the joint conduct or disposition of, official

agency business. The act applies to more than 45 federal collegial bodies, consisting

primarily of independent regulatory boards and commissions having from three to

seven members. The statute specifies 10 exceptions to its rule of openness that may

be invoked by the agencies. Any doubt as to whether a meeting should be open or

closed, however, is to be resolved in favor of an open meeting, according to the act’s

legislative history. Decisions to close a meeting are subject to judicial review.

Major Provisions

The major provisions of the Sunshine Act include (1) a presumption of open

meetings; (2) public notice of an agency meeting, indicating the time, location,

subject of the meeting, whether the meeting is open or closed, and the name and

telephone number of the official designated to respond to requests for information

about the meeting; (3) 10 exemptions by which an agency may close a portion or all

of a meeting and withhold information; (4) procedures an agency is to follow when

closing a meeting, which include a majority vote of the members and certification by

the general counsel that the meeting may properly be closed; and (5) judicial review

of an agency’s action to close a meeting.

A meeting may be closed if it involves: (1) national security matters that are

specifically authorized by an executive order to be protected and are properly

classified; (2) internal personnel rules and practices; (3) matters specifically

exempted from disclosure by statute; (4) trade secrets and commercial or financial

information obtained from a person and privileged or confidential; (5) formal censure

or accusation of a crime; (6) clearly unwarranted invasion of personal privacy; (7)

law enforcement investigatory records or information; (8) information contained in,

or related to, reports used by agencies responsible for the regulation or supervision

of financial institutions; (9) information whose premature disclosure would: (a) lead

to financial speculation or significantly endanger a financial institution; or (b)

significantly frustrate a proposed agency action; or (10) issuance of a subpoena or

other related judicial matter.

Discussion

The consensus of observers is that the act has been only partially successful in

opening bureaucratic decision making processes to public scrutiny. Although federal

agencies now routinely follow the Sunshine Act’s requirements, empirical research

suggests that, after the law was passed, agency practices changed in ways that may

have served to circumvent openness. The number of meetings, as well as the number

of open meetings or partly open meetings, declined steadily from 1979 to 1984 as

agencies resorted to wider use of the exemption provisions. In addition, some

CRS-39

agencies used notation voting, which permitted members to vote sequentially on

paper on the basis of circulated written materials, thereby making formal meetings

unnecessary.48

The implementation of the Sunshine Act has been characterized by difficulties

in finding the proper balance between the value of unfettered public access, on one

hand, and candid agency deliberations, on the other.49 The resulting tension is

evident in the disagreements over two issues: (1) the definition of what constitutes

a “meeting,” for purposes of the act; and (2) whether the act has diminished the

collegial nature of decision making, thereby affecting the quality of agency decisions.

Under the act, a meeting is defined as “the deliberations of at least the number

of individual agency members required to take action on behalf of the agency where

such deliberations determine or result in the joint conduct or disposition of official

agency business.”50 Deciding when a deliberation determines or results in agency

action, however, has proven to be difficult.

Two opposing views have dominated the discussion regarding the definition of

a meeting. Adherents of a broad definition hold that a meeting encompasses every

stage of the decision making process, including the early collective inquiry stage

when members hold informal discussions and explore various positions. Supporters

of a narrower view, in contrast, hold that a meeting encompasses only the more

advanced stage of the decision making process, when members focus on a specific

proposal or proposals.51

The Supreme Court supported the narrower definition in 1984, when it held that

under the act, a meeting did not include preliminary discussions among agency

officials.52 The Court ruled that consultative process sessions need not be public,

because the “statutory language contemplates discussions that ‘effectively

predetermine official actions.’” It held that, in order to fall under the meeting

definition, such discussions must be “‘sufficiently focused on discrete proposals or

issues as to cause or be likely to cause the individual participating members to form

reasonably firm positions regarding matters pending or likely to arise before the

agency.’”

See U.S. Congress, Senate Committee on Governmental Affairs, Government in the

Sunshine Act: History and Recent Issues, committee print, 101st Cong., 1st sess.

(Washington: GPO, 1989), pp. 58-98.

Administrative Conference of the United States, “Report & Recommendation by the

Special Committee to Review the Government in the Sunshine Act,” Administrative Law

Review, vol. 49 (spring 1997), p. 422.

5 U.S.C. § 552b(a)(2).

For a further development of these views, see David A. Barrett, “Facilitating Government

Decision Making: Distinguishing Between Meetings and Nonmeetings Under the Federal

Sunshine Act,” Texas Law Review, vol. 66, May 1988, pp. 1195-1228.

Federal Communications Commission v. ITT World Communications, 466 U.S. 463

(1984).

CRS-40

In the second area of contention, some research has suggested that open

meeting requirements may have suppressed the spirit of candor in meeting

discussions and thereby reduced collegiality in organizations subject to the act’s

provisions. A study of this issue involving multi-member agency officials revealed

that many are reluctant to discuss substantive issues at open meetings.53 Those

seeking to amend the act believe that collegial decisions should lead to better, more

informed decision making. This goal, they argue, is defeated by the need to open

most meetings to the public, which they believe prevents the type of extensive and

consequential interaction among members that should be the end product of collegial

decision making. To support this view, they cite data consisting of members’

recollections of how decisions were made before the act was implemented. Their

proposed solution is to amend the act to provide for a limited pilot project that would

give agencies greater leeway to close a meeting, provided that within five days of the

meeting, a “detailed summary” would be made available to the public. If such a

project proved successful, Congress could then make permanent changes in the

statute.54

Several arguments against amending the act have also been advanced. Some

researchers question the view that collegial decision making prior to the

implementation of the act was more deliberative and meaningful than it has been

since then. They assert that the earlier collegial decision making model was only

partially realized. They maintain that decisions from this era “frequently reflected

more the influence of staff or of chairpersons in association with staff than a true

amalgamation of member views informed by staff expertise.”55 Furthermore, the

evidence suggests that “members are inclined to prepare more thoroughly for open

meetings than for closed ones.”56 Consequently, it could be argued that members are

better informed in their decision making than they were prior to the act. Finally,

opponents of amending the Sunshine Act have sometimes suggested that it is

incumbent upon members of the multi-member agencies to shed their reluctance to

deliberate more meaningfully in public meetings.57

David M. Welborn, William Lyons, and Larry W. Thomas, “Implementation and Effects

of the Federal Government in the Sunshine Act,” Administrative Conference of the United

States: Recommendations and Reports 1984 (Washington: GPO, 1985), pp. 199-261.

Administrative Conference of the United States, “Report & Recommendation by the

Special Committee to Review the Government in the Sunshine Act,” pp. 421-428.

David M. Welborn, William Lyons, and Larry W. Thomas, “The Federal Government in

the Sunshine Act and Agency Decision Making,” Administration and Society, vol. 20, Feb.

1989, p. 470.

Ibid., p. 472.

This position is ascribed to representatives of the press by Randolph May in “Reforming

the Sunshine Act,” Administrative Law Review, vol. 49 (spring 1997), p. 418.

CRS-41

Selected Source Reading

Barrett, David A. “Facilitating Government Decision Making: Distinguishing

Between Meetings and Nonmeetings Under the Federal Sunshine Act.” Texas

Law Review, vol. 66 (May 1988), pp. 1195-1228.

Berg, Richard K. and Stephen H. Klitzman. An Interpretive Guide to the

Government in the Sunshine Act. Washington: GPO, 1978. (New edition

expected 2004.)

May, Randolph. “Reforming the Sunshine Act.” Administrative Law Review, vol.

49 (spring 1997), pp. 415-428.

U.S. Congress. Senate. Committee on Governmental Affairs. Government in the

Sunshine Act: History and Recent Issues. Committee print. 101st Congress, 1st

session. S.Prt. 101-54. Washington: GPO, 1989.

U.S. Congress. Senate. Committee on Government Operations and House Committee

on Government Operations. Government in the Sunshine Act — S. 5 (Public

Law 94-409): Source Book: Legislative History, Texts, and Other Documents.

Joint committee print. 94th Congress, 2nd session. Washington: GPO, 1976.

(name redacted)

CRS-42

I. Paperwork Reduction Act of 1995

Statutory Intent and History

Replacing the ineffective Federal Reports Act of 1942 (56 Stat. 1078), the

Paperwork Reduction Act of 1980 (94 Stat. 2812; 44 U.S.C. § 3501) was enacted

largely to relieve the public of the mounting information collection and reporting

requirements of the federal government. It also promoted coordinated information

management activities on a government-wide basis by the director of the Office of

Management and Budget (OMB), and prescribed information management

responsibilities for the executive agencies. Realizing that the provisions of the

Federal Reports Act were inadequate to control the proliferation of required

paperwork, Congress had established the Commission on Federal Paperwork, a

temporary national study panel, in 1974 (88 Stat. 1789). The 1980 statute

implemented many of the commission’s recommendations and reflected a

congressional desire to define more clearly the oversight responsibilities of OMB

regarding federal information collection and reporting requirements. To assist the

OMB Director, the statute established the Office of Information and Regulatory

Affairs (OIRA) within OMB, and authorized its administrator to develop and

administer uniform information policies in order to ensure the availability and

accuracy of agency data collection.

Although OIRA’s original authorization expired in 1983, the office was funded

on an annual basis from OMB’s general appropriations until passage of the

Paperwork Reduction Reauthorization Act in 1986 (100 Stat. 3341). This legislation

approved funding for OIRA through FY1989, and strengthened congressional

oversight of OIRA by requiring Senate confirmation of its administrator. Also, the

management focus of the act was sharpened with the 1986 amendments, which

refined the concept of “information resources management” (IRM), which is “the

planning, budgeting, organizing, directing, training, promoting, controlling, and

management activities associated with the burden, collection, creation, use, and

dissemination of information by agencies, and includes the management of

information and related resources such as automatic data processing equipment.”

This key term and its subset concepts would receive further definition and

explanation in 1995, making IRM a tool for managing the contribution of

information activities to program performance, and for managing related resources,

such as personnel, equipment, funds, and technology.

Largely due to continued failure to reach an agreement concerning OIRA’s

regulatory review role, legislative attempts to reauthorize OIRA during the 101st and

the 102nd Congresses were unsuccessful. During the 103rd Congress, a

reauthorization measure was passed by the Senate by unanimous vote, but the House

did not have time to complete action on such legislation. In 1995, as part of the

House Republican Contract with America, a revised Paperwork Reduction Act

(PRA) was enacted to reauthorize OIRA for six years (109 Stat. 163; 44 U.S.C. §

3501).

CRS-43

Major Provisions

The PRA of 1995 reaffirms the principles of the original 1980 act by reducing

the information collection burden on the public, and providing more efficient

management of information resources by federal agencies. The statute set 10%

paperwork reduction goals for the first two years of OIRA’s authorization, and a 5%

reduction for the remaining four years. OIRA is required to develop and implement

government-wide guidelines for the collection, dissemination, and processing of

federal information. The objective of minimizing the paperwork burden for

individuals and small businesses is extended explicitly to educational and nonprofit

institutions, federal contractors, and tribal governments. The authority and functions

of OIRA are revised, specifying information dissemination and related agency

oversight responsibilities. Another provision strengthens the public’s rights if an

agency should require information requests that are not in compliance with the

provisions of the PRA.

The federal agencies are required to evaluate proposed collections of

information, manage information resources to reduce information collection burdens

on the public, and ensure that the public has timely and equitable access to

information products and services. Except where specifically authorized by statute,

the agencies are prohibited from establishing exclusive, restricted, or other

distribution arrangements that interfere with timely and equitable public availability

of public information; restricting or regulating the use, resale, or redissemination of

public information by the public; charging fees or royalties for resale or

redissemination of public information; or establishing user fees that exceed the cost

of dissemination. Actions that the agencies must take with respect to information

technology are specified, and the Federal Information Locator System is replaced

with an agency-based electronic Government Information Locator Service to identify

the major information systems, holdings, and dissemination products of each agency.

Discussion

Since 1980, OIRA’s implementation of the PRA has been criticized by

Congress, the General Accounting Office (GAO), and the business community. An

early controversy surrounded OMB’s decision to assign OIRA primary responsibility

for regulatory reforms and other regulatory functions not associated with OIRA’s

paperwork responsibilities. In 1983, GAO concluded that only limited progress had

been made by OMB in information resources management, and recommended that

Congress amend the statute to prohibit OIRA from performing nonrelated duties such

as regulatory review.58

The PRA gives OMB significant authority to conduct reviews of federal agency

paperwork requirements in proposed rules. Critics of OMB’s paperwork clearance

powers maintain that OMB has too much discretion in determining agency recordkeeping requirements, and has used its authority in a selective and political manner

to control the government’s information collection activities. Many also believe that

See U.S. General Accounting Office, Implementing the Paperwork Reduction Act: Some

Progress, But Many Problems Remain, GAO/GGD-83-35, Apr. 20, 1983.

CRS-44

its review of rules and reports provides OMB with excessive control of the entire

regulatory process.

Even though the PRA stresses the importance of a government-wide information

policy, congressional hearings and GAO studies have consistently faulted OMB for

neglecting this important issue, while concentrating on paperwork control and

regulatory review functions. As federal agencies have made greater use of electronic

information technology, criticism has arisen that OIRA focuses on the collection and

dissemination of paper documents, while failing to develop policies concerning the

use of electronic formats.

In response to the statutory requirement of the PRA that OMB develop and

implement uniform and consistent information resources management policy, OMB

issued Circular No. A-130, Management of Federal Information Resources, in 1985.

The circular set forth government-wide guidelines for the collection, dissemination,

and processing of federal information systems and technology. Subsequently, OMB

published a series of notices in the Federal Register inviting public comment on

proposed revisions of the circular. In July 1994, OMB issued a final revision of A130 to address agencies’ internal management practices for information systems and

information technology.59

Two major segments of the National Defense Authorization Act for FY1996

(110 Stat. 186) contained provisions either amending or glossing the PRA.

Subsequently denominated the Clinger-Cohen Act (110 Stat. 3009-393), these

segments transfer the authority for information technology acquisitions from the

General Services Administration to OMB. The Director of OMB is assigned new

duties for coordinating the purchase of information systems with OIRA and the

Office of Federal Procurement Policy. As part of the budget process, OMB is

required to analyze the costs and risks associated with capital investments for the

purchase of federal information acquisitions. The position of Chief Information

Officer (CIO) is established within each agency to coordinate and monitor the

implementation of information technology programs.

More recent amendments to the PRA were made by the Government Paperwork

Elimination Act of 1998 (112 Stat. 2681-749). This statute makes the Director of

OMB responsible for providing government-wide direction and oversight regarding

“the acquisition and use of information technology, including alternative information

technologies that provide for electronic submission, maintenance, or disclosure of

information as a substitute for paper and for the use and acceptance of electronic

signatures.” In fulfilling this responsibility, the director, in consultation with the

National Telecommunications and Information Administration (NTIA) of the

Department of Commerce, is tasked with developing, in accordance with prescribed

requirements, procedures for the use and acceptance of electronic signatures by the

executive departments and agencies. A five-year deadline is prescribed for the

agencies to implement these procedures.

U.S. Office of Management and Budget, “Management of Federal Information Resources,

OMB Circular No. A-130, July 25, 1994,” Federal Register, vol. 59, July 25, 1994, pp.

37906-37928.

CRS-45

The Director of OMB is also tasked by the statute to “develop procedures to

permit private employers to store and file electronically with Executive agencies

forms containing information pertaining to the employees of such employers.” In

addition, the director, in cooperation with NTIA, is to conduct an ongoing study of

the use of electronic signatures under the new law, with attention to paperwork

reduction and electronic commerce, individual privacy, and the security and

authenticity of transactions. The results of this study are to be reported periodically

to Congress.

Finally, electronic records submitted or maintained in accordance with the

statute’s procedures, “or electronic signatures or other forms of electronic

authentication used in accordance with such procedures, shall not be denied legal

effect, validity, or enforceability because such records are in electronic form.” The

act further specifies: “Except as provided by law, information collected in the

provision of electronic signature services for communications with an executive

agency ... shall only be used or disclosed by persons who obtain, collect, or maintain

such information as a business or government practice, for the purpose of facilitating

such communications, or with the prior affirmative consent of the person about

whom the information pertains.”

The PRA authorization of appropriations for OIRA expired at the end of

FY2001. When Congress returns to the PRA to reauthorize OIRA appropriations,

it will have an opportunity to consider several prevailing issues which may be

addressed through amendment or extension of the statute. For instance, critics

continue to assert that the act’s current provisions do not go far enough to minimize

costly reporting burdens for small businesses, educational institutions, and state and

local governments. Other issues of concern to some are agency website management

and accountability, as well as various aspects of government e-mail management.

Selected Source Reading

Cole, Roland J. and Paul Sommers. “Government Paperwork: Not an Easy Villain

After All.” Journal of Policy Analysis and Management, vol. 1 (summer 1982),

pp. 554-561.

Plocher, David. “The Paperwork Reduction Act of 1995: A Second Chance for

Information Resources Management.” Government Information Quarterly, vol.

13, 1996, pp. 35-50.

U.S. General Accounting Office. Paperwork Reduction Act: Burden Increases and

Violations Persist. GAO-02-598T. April 11, 2002.

——. Paperwork Reduction Act: Record Increase in Agencies’ Burden Estimates.

GAO-03-691T. April 11, 2003.

CRS Report RL30590, Paperwork Reduction Act Reauthorization and Government

Information Management Issues, by (name redacted).

(name redacted)

CRS-46

J. Regulatory Flexibility Act of 1980

Statutory Intent and History

The Regulatory Flexibility Act (RFA) of 1980 (94 Stat. 1164; 5 U.S.C. §§ 601612) was enacted in response to concerns raised during a White House conference

on small business about the differential impact of federal regulations on small

business. The RFA requires federal agencies to assess the impact of their forthcoming

regulations on small entities, which the act defines as including small businesses,

small governmental jurisdictions, and certain small not-for-profit organizations.

Under the RFA, federal agencies must prepare a regulatory flexibility analysis at the

time that either proposed or certain final rules are issued. The act requires the

analysis to describe (1) the reasons why the regulatory action is being considered; (2)

the small entities to which the proposed rule will apply and, where feasible, an

estimate of their number; (3) the projected reporting, recordkeeping, and other

compliance requirements of the proposed rule; and (4) any significant alternatives to

the rule that would accomplish the statutory objectives while minimizing the impact

on small entities.

A regulatory flexibility analysis is not, however, required if the head of the

agency issuing the rule certifies that it will not have a “significant economic impact

on a substantial number of small entities.” The RFA does not define the terms

significant economic impact or substantial number of small entities, thereby giving

federal agencies substantial discretion regarding when the act’s analytical

requirements are triggered. Also, the RFA’s analytical requirements do not apply to

any final rule for which the agency is not required to publish a proposed rule.

Although the original RFA did not permit judicial review of agencies’ actions under

the act, amendments to the act in 1996, as part of the Small Business Regulatory

Enforcement Fairness Act (SBREFA; 110 Stat. 857), permitted judicial review

regarding, among other things, agencies’ regulatory flexibility analyses for final rules

and any certifications that their rules will not have a significant impact on small

entities.

In addition, the RFA requires agencies to publish a “regulatory flexibility

agenda” in the Federal Register each October and April listing regulations that the

agency expects to propose or promulgate and which are likely to have a significant

economic impact on a substantial number of small entities. The act also requires

agencies to review final rules with a significant impact within 10 years of their

promulgation to determine whether they should be amended or rescinded. Another

section of the statute requires the chief counsel of the Small Business

Administration’s (SBA’s) Office of Advocacy to monitor and report at least annually

on agencies’ compliance with the act.

The RFA also requires agencies to ensure that small entities have an opportunity

to participate in the rulemaking process, and the 1996 amendments to the act in

SBREFA put in place special requirements for proposed rules issued by the

Environmental Protection Agency (EPA) and the Occupational Safety and Health

Administration (OSHA). EPA and OSHA are required to convene “advocacy review

panels” before publishing a regulatory flexibility analysis for a proposed rule. The

review panel must consist of full-time federal employees from the rulemaking

CRS-47

agency, the Office of Management and Budget, and SBA’s chief counsel for

advocacy, and the panel must collect advice and recommendations from

representatives of affected small entities about the potential impact of the draft rule.

Major Provisions

The major provisions of the RFA, as amended: (1) require federal agencies to

publish in the Federal Register each October and April a list of forthcoming rules

that are likely to have a significant economic impact on a substantial number of small

entities; (2) require federal agencies to prepare a regulatory flexibility analysis for any

covered proposed or final rule that the agency concludes is likely to have a significant

economic impact on a substantial number of small entities; (3) require the regulatory

flexibility analyses to have certain elements; (4) require EPA and OSHA to convene

an advocacy review panel before publishing any proposed rule likely to have a

significant economic impact on a substantial number of small entities; (5) require the

chief counsel in the Advocacy Office in SBA to monitor agencies’ compliance with

the act and prepare an annual report; (6) require agencies to review their final rules

with a significant impact within 10 years of their promulgation to determine whether

they should be amended or rescinded; and (7) permit judicial review of agencies’

regulatory flexibility analyses and determinations that their rules do not have a

significant economic impact on a substantial number of small entities.

Discussion

The SBA chief counsel for advocacy’s reports on the RFA generally indicate

that compliance with the act has been uneven. GAO has also repeatedly examined

the implementation of the act, and a recurring theme in GAO’s reports is the varying

interpretation of the RFA’s requirements by federal agencies. Agencies differ

dramatically regarding what constitutes a “significant” economic impact and a

“substantial” number of small entities. They also differ on what rules they are

required to review within 10 years of their issuance — those that had a significant

impact at the time they were issued or those that currently have that impact. In 2001,

GAO testified that the promise of the RFA may never be realized until Congress or

some other entity defines what a significant economic impact and a substantial

number of small entities mean in a rulemaking setting.

The 1996 amendments to the act providing for judicial review and advocacy

review panels for EPA and OSHA rules have proven effective. The SBA chief

counsel for Advocacy’s annual report on the RFA for FY2003 said that judicial

review “has encouraged agencies to increase their compliance with the requirements

of the RFA.” Advocacy review panels have permitted small entities to participate

early in the rulemaking process — before proposed rules are written and agencies

positions become more fixed.

Selected Source Reading

Freedman, Doris S., Barney Singer, and Frank S. Swain. The Regulatory Flexibility

Act: Orienting Federal Regulation to Small Business. Dickinson Law Review,

vol. 93 (1989), pp. 439-478.

CRS-48

Lubbers, Jeffery S. A Guide to Federal Agency Rulemaking, 3rd ed. Chicago:

American Bar Association Publishing, 1998.

U.S. Administrative Conference of the United States. A Critical Guide to the

Regulatory Flexibility Act, Recommendations and Reports. [Paul R. Verkuil.]

Washington: GPO, 1981, pp. 203-302.

U.S. General Accounting Office. Regulatory Flexibility Act: Agencies’

Interpretations of Review Requirements Vary. GAO/GGD-99-55. April 1999.

——. Regulatory Flexibility Act: Key Terms Still Need to Be Clarified. GAO-01669T. April 24, 2001.

U.S. Small Business Administration, A Guide to the Regulatory Flexibility Act.

Washington: SBA, 1996.

(name redacted)

CRS-49

K. Negotiated Rulemaking Act

Statutory Intent and History

The Negotiated Rulemaking Act of 1990, as amended and permanently

authorized in 1996 (110 Stat. 3870; 5 U.S.C. §§ 561-570a), seeks to overcome what

some observers describe as an adversarial relationship between agencies and affected

interest groups that often accompanies the federal rulemaking process. The concept

of negotiated rulemaking (sometimes referred to as “regulatory negotiation” or “regneg”) emerged in the 1980s as a supplement to the traditional procedure for

developing regulations. The act largely codified the practices of those agencies that

had previously used the negotiated rulemaking procedure and incorporated relevant

recommendations of the now defunct Administrative Conference of the United States

(ACUS). The act encourages (but does not require) agencies to consider convening

a negotiated rulemaking committee before developing and issuing a proposed

regulation under the Administrative Procedure Act (APA), described elsewhere in

this compendium. The committee, composed of representatives of the agency and

the various interest groups that would be affected by the proposed regulation,

addresses areas of concern in the hope that it can reach agreement on a proposed

regulation. The agency can (but, again, is not required to) then issue the agreed-upon

proposal as a proposed rule, and, if appropriate after public comment, as a final rule

under the APA. Since committee agreement is normally by unanimous consent, the

expectation is that any rule drafted through negotiated rulemaking would be easier

to implement and less likely to be the subject of subsequent litigation. In establishing

negotiating committees, agencies must comply with the Federal Advisory Committee

Act (described elsewhere in this compendium). Agency actions related to

establishing, ending, or supporting the committees are not judicially reviewable.

Following passage of the Negotiated Rulemaking Act, ACUS served as a

clearinghouse on regulatory negotiation matters and assisted agencies in establishing

procedures for the conduct of regulatory negotiations and the training of personnel.

When ACUS was abolished in 1995, some of its resources and responsibilities in the

area were assumed by the Federal Mediation and Conciliation Service (FMCS). The

Clinton Administration’s National Performance Review recommended increased use

of negotiated rulemaking, and Executive Order 12866 (September 1993) directed

agencies to consider the use of consensual mechanisms, such as negotiated

rulemaking, when developing regulations. Congress has sometimes required

agencies to use negotiated rulemaking in developing rules in certain areas.

Major Provisions

The major provisions of the act require that (1) a negotiated rulemaking

committee consist of at least one member of the agency and no more than 25

members, unless the head of the agency determines that more are needed; (2) the

agency select an impartial “facilitator” to chair meetings, subject to the approval of

the committee by consensus; (3) an agreement on any negotiated rulemaking must

be unanimous, unless the negotiated rulemaking committee agrees to other

conditions; (4) any proposal agreed to by the negotiated rulemaking committee is not

binding on the agency or other parties; and (5) the head of an agency, when deciding

whether to establish a negotiated rulemaking committee, assure that (a) there are a

CRS-50

limited number of identifiable interests that will be significantly affected by the rule;

(b) there is a reasonable likelihood that a committee can be convened with a balanced

representation of interested parties who are willing to negotiate in good faith; and (c)

there is a reasonable likelihood that a committee will reach a consensus on the

proposed rule within a fixed period of time. The act also allows agencies to pay

reasonable travel and per diem expenses, and reasonable compensation, to committee

members under certain conditions.

Discussion

Negotiated rulemaking is a possible supplement to, but not a replacement of,

the normal rulemaking procedures that agencies are required to follow under the

APA. For any proposal agreed to by a negotiated rulemaking committee to take

effect, the agency must still develop and issue it as a regulation under the provisions

of the APA. The use of negotiated rulemaking by federal agencies is strictly

voluntary. Also, negotiated rulemaking does not impair any rights otherwise retained

by agencies or private parties. Even if agreement is reached on a proposal by a

negotiated rulemaking committee, neither the agency nor the other members of the

committee are bound by the agreement. An agency need not issue the proposed

regulation drafted by the committee. If an agreed-upon proposal is issued by the

agency as a regulation under the APA, it may still be challenged in court by parties

who previously agreed to it in committee.

Agencies are encouraged to convene and use a negotiated rulemaking committee

only when certain conditions are expected to produce a successful or favorable result

(e.g., easy identification of those likely to be affected by the rule and, where

differences exist, the parties’ willingness to consider each others’ points of view).

Since agreement by the parties generally must be by unanimous consent, it is

essential that the parties involved be willing to compromise in order to reach

agreement. The fact that participants may change their minds and later challenge a

regulation they initially supported can increase their willingness to participate in the

process.

These factors can, however, also serve to limit the instances when agencies see

negotiated rulemaking as a viable option. In addition, agency experience with the

technique indicates that negotiated rulemaking can be more costly than conventional

rulemaking methods, particularly at the front end of the process. Finally, research

indicates that negotiated rulemaking does not appear to reduce the overall time taken

to issue a rule or to make rules more likely to avoid litigation. These findings are

particularly notable given that agencies are instructed to use negotiated rulemaking

only when they expect success. Other research, however, indicates that negotiated

rulemaking can increase satisfaction with the substance of the final rule and with the

overall process.

Selected Source Reading

Coglianese, Cary. “Assessing Consensus: The Promise and Performance of

Negotiated Rulemaking.” Duke University Law Journal, vol. 46 (1997), pp.

1255-1349.

CRS-51

Langbein, Laura I. and Cornelius M. Kerwin. “Regulatory Negotiation versus

Conventional Rule Making: Claims, Counterclaims, and Empirical Evidence.”

Journal of Public Administration Research and Theory, vol. 10 (2000), pp. 599632.

Lubbers, Jeffery S. A Guide to Federal Agency Rulemaking, 3rd ed. Chicago:

American Bar Association Publishing, 1998, pp. 127-131.

U.S. Administrative Conference of the United States, Negotiated Rulemaking

Sourcebook. Washington: GPO, 1995.

(name redacted)

CRS-52

L. National Environmental Policy Act

Statutory Intent and History

The National Environmental Policy Act of 1969 (NEPA) was enacted on

January 1, 1970 (83 Stat. 852; P.L. 91-190; 42 U.S.C. § 4321). The act is considered

to be landmark legislation which “set the Nation on a new course of environmental

management” (H.Rept. 92-316). The Preamble to the law states:

To declare a national policy which will encourage productive and enjoyable

harmony between man and his environment; to promote efforts which will

prevent or eliminate damage to the environment and biosphere and stimulate the

health and welfare of man; to enrich the understanding of the ecological systems

and natural resources important to the Nation; and to establish a Council on

Environmental Quality.

Its “action-forcing” directives are meant to ensure that environmental values are

given appropriate consideration in all programs of the federal government. Its policy

declaration and its procedures for environmental impact assessment have been

adopted in many similar state laws, and also by other nations.

The preparation of environmental impact statements (EISs) has heightened

awareness of, and attention to, the environmental effects of actions by federal

agencies while also increasing public participation. The requirements of the law have

played a limited role in what decisions are ultimately made because the law is

procedural, and does not establish environmental standards. It has spawned an

enormous amount of information-gathering and analysis activities, which have been

criticized by supporters as (substantively or scientifically) inadequate and by critics

as too burdensome.

The National Environmental Policy Act should be distinguished from the

substantive body of environmental protection laws, which attempt to correct

pollution and resource problems ranging from air and water quality and noise and

toxic substances control to the various statutes related to resource development, such

as surface mining regulation, coastal zone and offshore management, or various

public land programs. In contrast, NEPA is a relatively short policy declaration and

impact assessment law designed to avoid or prevent such problems by informing the

public about environmental consequences before a project is begun, and has been

more associated with “administrative reforms” within federal agencies than with any

particular aspect of (physical) environmental protection. NEPA compliance is

required in connection with many other laws, if the action is one that triggers the EIS

preparation criterion of “significantly affecting the quality of the human

environment.”

Government-wide rules of the Council on Environmental Quality (CEQ) require

impact statement preparation to be integrated as much as possible with studies,

surveys, and analyses under other federal environmental review laws — such as the

Endangered Species Act, the Fish and Wildlife Coordination Act, the National

Historic Preservation Act, and, for example, water quality permits, as well as

executive orders on floodplain management and wetlands protection. However, once

CRS-53

an agency complies with NEPA’s information-based procedures, the act’s effect on

ultimate decisions is limited by the agency’s other mandates.

While there now seems to be agreement about the utility of assessing the

environmental consequences of major federal actions, the long-term compliance

trends depend on whether individual agencies will continue to adapt their practices

to the streamlined, but rigorous, process in CEQ regulations for more fully

integrating the impact analyses with agency plans and programs. Otherwise, lessened

compliance could evolve and lead to new legal challenges.

Enforcing requirements for preparation of environmental impact statements is

partially achieved through public participation and judicial reviews. The role of the

courts in interpreting and enforcing compliance has been perhaps the most

controversial aspect of NEPA’s previous implementation. Some NEPA compliance

issues have been raised anew in court challenges — especially during a period when

program changes affect federal resource management of public lands. Typical of the

effects on NEPA compliance are the EIS “categorical exclusions,” issued by federal

agencies which permit additional activities on public lands that would now be

excluded from the NEPA process, unless considered as part of overall assessments

in broad, “areawide EISs.” An evaluation of the cumulative results of these excluded

actions is often not feasible. (See reference for 2003 NEPA Task Force, as well as

specific legislative provisions for streamlining compliance for grazing, P.L. 108-7

and 108-11; forest health, P.L. 108-148; and aviation projects, P.L. 168-176.)

Major Provisions

Title I.

Section 101: Policies and Goals. (a) Congress declared: “it is the

continuing policy of the federal government ... to create and maintain conditions

under which man and nature can exist in productive harmony, and fulfill the social,

economic, and other requirements of present and future generations of Americans.

(b) In order to carry out the policy ... it is the continuing responsibility of the federal

government ... to improve and coordinate federal plans, functions, programs, and

resources” to achieve six broadly stated goals that address future environmental

quality objectives, with the paramount concerns including “responsibilities ... as

trustee of the environment for succeeding generations,” attaining “beneficial uses of

the environment without degradation, or risk to health or safety”; preserving

“diversity” of natural, historic, and cultural heritages; achieving a “balance between

population and resource use”; and enhancing the “quality of renewable resources and

... maximum attainable recycling.”

Section 102: Administration. Congress directed that, to the fullest extent

possible, the laws of the United States shall be administered in accordance with these

policies, and further directed all federal agencies to incorporate the policies and goals

through information and methods for appropriate consideration of environmental

values by using “a systematic, interdisciplinary approach,” and by considering

“presently unquantified environmental amenities and values.”

CRS-54

Section 102(2)(C): Environmental Impact Statements. As an “actionforcing” mechanism to carry out those policies and procedures, agency officials are

required to include a “detailed statement” of environmental impacts as part of “every

recommendation or report on proposals for legislation and other major federal actions

significantly affecting the quality of the human environment.” This statement of

environmental impact is to assess any “adverse environmental effects,” and

alternatives to the proposed action, local short-term uses of the environme

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.