Hearing of the Commercial and Administrative Law Subcommittee of the House Judiciary Committee - Midnight Rulemaking: Shedding Some Light

HEARING OF THE COMMERCIAL AND ADMINISTRATIVE LAW SUBCOMMITTEE OF THE HOUSE JUDICIARY COMMITTEE
SUBJECT: MIDNIGHT RULEMAKING: SHEDDING SOME LIGHT
CHAIRED BY: REP. STEVE COHEN (D-TN)
WITNESSES PANEL I: REP. JERROLD NADLER (D-NY); PANEL II: GARY BASS, PH.D.EXECUTIVE DIRECTOR, OMB WATCH; ROBERT F. KENNEDY, JR., CHAIRMAN, WATERKEEPER ALLIANCE; LYNN RHINEHART, ASSOCIATE GENERAL COUNSEL, AFL-CIO; VERONIQUE DE RUGY, PH.D., SENIOR RESEARCH FELLOW, MERCATUS CENTER AT GEORGE MASON UNIVERSITY; MICHAEL ABRAMOWICZ, GEORGE WASHINGTON UNIVERSITY LAW SCHOOL; CURTIS COPELAND, PH.D., SPECIALIST IN AMERICAN NATIONAL GOVERNMENT, GOVERNMENT AND FINANCE DIVISION, CONGRESSIONAL RESEARCH SERVICE

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REP. STEVE COHEN (D-TN): This hearing on the Committee on the Judiciary Subcommittee on Commercial and Administrative Law will now come to order. Without objection, the Chair will be authorized to declare a recess of the hearing. I'd like to begin by welcoming everyone to the first hearing of the Subcommittee of the 111th Congress. In particular, I wish to extend warm regards to Ranking Member of the Subcommittee, Mr. Franks, who I look forward to working with. I very much look forward to working with all the members of the Committee on both sides of the aisle. And welcoming, would like to have been welcoming our new member, Mr. Maffei who will get a, he's not here yet. I will now recognize myself for a short statement.

Despite the fact that many aspects of the Bush Administration were winding down operations after the November 4, 2008 election, administrative agencies were ramping up their rule making. A flurry of regulatory activity went on between the November presidential election and inauguration day, with the former administration attempting to make a final impact. This midnight regulation period is a time without political accountability where controversial actions will not cost the administration's party votes. Under the cover of darkness, the Bush Administration used the midnight regulatory period to promulgate numerous regulations that run counter to statutory mandates and the public interests. Other administrations, Democrat as well, have done the same, and each are wrong.

Midnight rule making has been criticized as an effort of the outgoing administration to tie the hands of the next administration. While the tactic of flooding the federal register at the end of an administration has been used by presidents of both parties, these regulations recently experienced through this Bush Administration have been particular troubling. I have both procedural and substantive concerns about the Bush Administration's use of midnight rule making. Regulatory experts across the political spectrum agree that the hurried process of midnight rule making leads to inherently flawed policy. During the end of the Bush Administration, agencies reportedly cut corners and administrative procedure by rushing regulations through the system without proper regulatory review. In the case of many of the most significant rules, the public comment period was abridged, significant public comments were ignored, and acceptable rule making practices were tossed aside.

The administration's desire to make it more difficult to revoke controversial rules led to other questionable tactics. In an effort to ensure that the rules would go into effect prior to inauguration day, the administration reportedly categorized several significant rules as minor as opposed to major, so that their effective dates would be 30 days after publication in the federal register rather than 60 days.

A memo issued by then White House chief of staff Joshua Bolten in May 2008 announced the end of midnight regulations, stating that except in extraordinary circumstances, final regulations should be issued no later than November 1, 2008. Nevertheless, the Bolten memorandum was brushed aside by the Bush Administration and dozens of controversial regulations went well beyond that deadline. These included regulations on the environment, civil rights, workplace safety, opportunities to study medical marijuana, abortion rights, regulatory pre-emption, and online gambling. Instead of implementing midnight regulations only in extraordinary circumstances, midnight regulations were used as parting gifts to favored industries or political interests.

As several of our witnesses will recount today, the impact of midnight regulations on individuals, businesses, workers, science and the environment is profound. When regulations jeopardize public health, safety, and welfare, Congress has a duty to respond. This hearing today was for whether the Congressional Review Act, the appropriations process for an approach like Mr. Nadler's legislation, HR 34 is the best way to proceed.

Although we are transitioning to a new era, Congress and the American people have an obligation to examine and rectify wreckage left behind by the Bush Administration, including those egregious midnight regulations. For the comfort of the minority party, I want them to know that I plan to introduce and will introduce into the record without objection a statement from a very much non-partisan and I think conservative group, the Competitive Enterprise Institute, that specifically requests that all of our actions look in a bipartisan manner toward this administration and future administrations and make sure that what's good for the goose is good for the gander, and I certainly concur in that and would like to enter the Freedom Works letter of February 3 into the record, as well as a statement from Earth Justice that was to be a witness but was unable to be included in our list of witnesses, and include their statement with unanimous consent into the record.

With those preliminary remarks, I would like to recognize my colleague, Mr. Franks, the distinguished Ranking Member of the Subcommittee and whose Cardinals came close to a Super bowl Championship for his opening remarks.

REP. TRENT FRANKS (R-AZ): Well thank you, Mr. Chairman, and I'm just grateful to be here this morning. I'm grateful to be here with you as the Subcommittee and Commercial Law and Administrative Law meets for the first time, I want to congratulate you on becoming the Chairman of this Committee, and I want to warmly welcome our witnesses if it so happens, and certainly welcome the opportunity to begin our consideration of administrative law issues during this Congress.

The Commercial and Administrative Law Subcommittee spent next to no time on administrative law last term. The Subcommittee spent more time on commercial law but still that's not what absorbed the majority of the Subcommittee's attention. Instead, the Subcommittee spent the greatest portion of its time on bashing the Bush Administration and the Bush Administration's Department of Justice.

Now Mr. Chairman, I hope today that we can turn a new page and that presidents of both parties and presidents in most modern administrations, of course, you know we recognize that they promulgated an increased number of regulations during their final months in office. In fact, it was Jimmy Carter whose administration's end of term activity gave birth to the phrase midnight regulations. And President Clinton published even more.

The George W. Bush Administration looking back on the Clinton debacle took some concerted and constructive steps to introduce order into the end of term process. It called for all new regulations planned for the last part of its tenure to be proposed by June 1st, 2008 and it called for all of these regulations to be promulgated by November 1st, 2008. The Bush Administration's policy provided for exceptions, and some exceptions in the end were made, but on the whole the process was more orderly than the chaos that attended the final days of the Clinton Administration. Accordingly, I hope we won't spend our time on bashing the Bush Administration for doing less of what all recent administrations have done. Let us instead devote ourselves to the more important task, presidents are elected for four years and unless we were to craft prohibition for all regulatory activity during a second term, we should use this hearing as an opportunity to begin to build upon the improvements to the regulatory process that the Bush Administration undertook. Building on the improvements of previous administrations. Let us therefore ask how can we reform the entire regulation writing process, because midnight regulations are just one symptom of a dysfunctional and outdated administrative law system governed by the 63-year old administrative procedure act.

Throughout the process of writing regulations, we need to improve procedures, we need to insure first, universal and better cost benefit analysis, sounder science, more transparency, better public participation, more negotiated rule making, wide spread E rule making, stronger review of the agency's regulatory development processes, and an end to the proliferation of supposedly non-biding guidance that seeks to make an end round on the requirements of rule making. These are just some of the improvements that we can make to the rule making process that governs so much of the federal government's law making activity.

If we can progress on these improvements, we will reduce the controversy over end of administration rule making by bringing more transparency and objectivity into the entire rule making process, not matter when it occurs during the course of any administration. Other reforms include improving our review of agency regulations under the Congressional Review Act, and of course above all, Congress can dedicate itself a new to writing clearer, more detailed, and more definitive statutes. In this way, Congress can better exercise the policy making authority entrusted to it by the Constitution and not transfer that authority excessively to administrative agency which are accountable only to the people in indirect ways through the president or in this case of so-called independent agencies, even more indirectly.

In the 108th and 109th Congresses, we considered those topics so important that we embarked on a new special project, the Administration Law Process and Procedure Project for the 21st Century. This project generated a number of good proposals. We have yet to conclude our important work in this area, yet the 21st Century marches on, Mr. Chairman, and the burden of regulations imposed under an outdated system grows. And so sir, again, I'm glad that we're here today and that the topic of administrative law is the first of which we turn in this term. And I hope that this will be a fruitful field of bipartisan endeavor in this term. I look forward to working with you. Thank you.

REP. COHEN: I thank the gentleman for his statement. And without objection, other member's opening statements will be included in the record. And I was to assure the gentleman as I did in my opening statement that I do want this to be bipartisan and to look at the future to all administrations.

I'm now pleased to introduce the witness for our first panel for today's hearing. The Honorable Representative Jerrold Nadler. Congressman Nadler represents New York's 8th Congressional District, which includes Manhattan's west side below 89th and I guess down to the Battery. Also areas of historic Brooklyn. Congressman Nadler was first elected to the House in 1992 after serving 16 years in New York state assembly. In 2004 he was elected with a resounding 80 percent of the vote. Throughout his career he has championed civil rights, civil liberties, efficient transportation and a host of progressive issues such as access to health care, support for the arts, and a protection of the Social Security system. He's a voice for the voiceless. And his roles as an assistant whip and a senior member of both the House Judiciary and Transportation Committees, Congressman Nadler has the opportunity on a daily basis to craft and shape the major laws that govern our country. Currently serves as chairman of the Constitution, Civil Rights, and Civil Liberties Subcommittee of Judiciary, which considers all proposed constitutional amendments and deals with such issues as freedom of expression, religious freedom, privacy, due process, civil rights, reproductive choice, and lesbian/gay/bisexual transgender rights.

Thank you for your willingness to participate in today's hearing and although I'm sure you know the procedure, I will go over it for the benefit of our other witnesses. Without objection, your written statement will be placed into the record and we would ask that you limit your oral remarks to five minutes. We have a lighting system with a green light which is for go, at four minutes it turns yellow, which is like the two minute mark in the NFL, and then the five minute mark you get a red light which means you're about at the end of your testimony. After each witness has presented his or her testimony, subcommittee members will be allowed to ask you questions subject to the five minute limit. After Mr. Nadler testifies, we might have votes and we're going to try to take into consideration Mr. Kennedy's schedule and have him without any objection be our first witness and have questions of him so he can make an airplane in that time to catch a fast train, get me a ticket back to New York.

Mr. Nadler, will you proceed with your testimony?

REP. JERROLD NADLER (D-NY): Thank you, Mr. Chairman, Ranking Member Franks, and my fellow members of the Judiciary Committee. I appreciate the opportunity to testify before you today on this very important issue.

The problem of midnight rules is not a new one, but the practice is prone to abuse and undercuts our democratic process. That is why, on the first day of this Congress, I reintroduced the Midnight Rule Act, H.R. 34, which would allow incoming agency heads to prevent rules adopted within the last three months of the previous administration from going into effect. This legislation lays out an approach to enable an incoming president to deal with midnight rules without tying him up for months or years and preventing him from implement his agenda, or her agenda.

When a president rushes to finalize regulations in advance of an incoming administration, especially during the lame duck period, that president binds the hands of his successor for six months to as long as two years. This can be accomplished with minimal political accountability by the outgoing president or by the president's party, whose members hope to retain some of their jobs.

In this way, midnight rules differ from other executive actions, such as executive orders, which a new president can change if he wishes upon assuming office. The conduct of the outgoing Bush administration really highlighted the problem in several ways.

First, the Bush administration rushed many rules through the process at an accelerated pace. This was facilitated by a memo issued by the White House Chief of Staff, Josh Bolten, on May 9th, 2008. It instructed agencies to finalize regulations by November 1st, enabling the outgoing administration to put in place regulations just prior to the swearing-in of the new president. The results of the Bolton memo are clear. In October and November of last year, federal agencies submitted 30 "major rules" that is those with an economic impact of at least $100 million each , to the Governmental Accountability Office. During the same period in 2007, that number was only 13. This represents an increase over one year of 130 percent.

Similarly, the number of "significant rules" submitted to the Office of Information and Regulatory Affairs between September 1, 2008 and December 31, 2008 represents an increase of 102 percent over the same period in 2007, 190 significant final rules as opposed to 94 such rules the year before.

Second, the lack of accountability in its waning weeks enabled the administration to adopt highly controversial rules in family planning, endangered species and global warming that may not have passed muster in a more public debate but since there was no more public accountability, no election to look forward to, they could do what they wanted to and bind the hands of the new administration.

Finally, these midnight rules allow the Administration to extend its policies well into the next administration despite the fact that the voters have voted to move in a new direction. The Midnight Rule Act would address this problem in several ways. It would give a new agency head a limited period of time to review and act on regulations adopted in the final 90 days of a president's term. The new agency head would have 90 days after being confirmed to his office or her office to disapprove a midnight rule by publishing a statement of disapproval in the Federal Register, and sending a notice of disapproval to the congressional committees of jurisdiction.

In order to address emergencies, limited exceptions are provided in cases of an imminent threat to health or safety, enforcement of criminal laws, implementation of an international trade agreement and national security.

Congress could revoke some of these rules under the Congressional Review Act. However, the Congressional Review Act requires individual votes on each rule. Given the sheer number of midnight rules issued by the Bush Administration, or perhaps by administrations of the future, this would require more time than Congress has available while we are trying to pass an economic recovery package, finalize FY2009 appropriations bills, and prepare for a new budget for the upcoming fiscal year.

Most importantly, this proposal would place a check on midnight rules. The American people have a right to hear the views of candidates for president and other offices on very important issues and then to be governed by the choice they made in the election, and not to be governed by the dead hand of a choice they made four or eight years earlier. The American people are entitled to alter the direction of their government based on new circumstances, or even to change their minds if they wish. That is why we have a new presidential election every four years. And that is why the policies of the old outgoing administration should not be permitted to continue and to bind the new incoming administration for six months to two years.

I have received many helpful comments and suggestions on ways to clarify this legislation, and I hope to work with my colleagues to fine tune it. The core policy is that the will of the electorate should not be frustrated in effectuating new policy by the old administration. Voters have a right to debate critical issues in the selection of their representatives and to have their choices implemented after the electoral process is finished.

Thank you again for the opportunity to testify today, and I look forward to working with you all to comprehensively address this problem in the days ahead.

REP. COHEN: I thank the gentleman for his statement. The Chair does not have a question of Mr. Nadler and would entertain questions from the committee, and if not we could proceed to have the second panel come forward and Mr. Kennedy could give his remarks first and then he could catch his airplane. Without objection, can we let Mr. Nadler go?

REP. NADLER: Thank you.

REP. COHEN: Let my person go. Thank you.

If the second panel would come up, we're going to forego the traditional introductions of the entire panel for purposes of trying to accommodate the airplane schedule that Mr. Kennedy has, introduce him, have his statement and have questions from the panel.

Our second witness is Robert F. Kennedy, Jr. Mr. Kennedy is credited with leading the fight to protect New York City's water supply, but his reputation as a resolute defender of the environment stems from a litany of successful legal actions. The list includes winning numerous settlements for River Keeper, prosecuting governments and companies for polluting the Hudson River in Long Island sound, arguing cases to expand citizen access to the shoreline, and suing treatment plants to force compliance with the Clean Water Act. Mr. Kennedy acts as chief prosecuting attorney for River Keeper, he also serves as senior attorney for the National Resources Defense Counsel and I may say that his name in addition to the polar bear force me to write a check occasionally. And as the president also of the Water Keeper Alliance at Pace University School of Law, he is a clinical professor and supervising attorney at the Environmental Litigation Clinic in White Plains, New York. Earlier in his career he served as Assistant DA in New York City. Published several books including the River Keeper's 1997 with Johnny Cronen (ph), his articles have appeared in the New York Times, Atlantic Monthly and the Wall Street Journal Esquire, Village Voice, Washington Post, et cetera. He's been on radio Air America with Ring of Fire, and he is the father of six children and he hopes to leave a earth similar to the one that he has had the opportunity to inhabit. Mr. Kennedy, thank you for coming into our committee.

MR. KENNEDY: -- (inaudible) --

REP. COHEN: You need to turn your, somewhere, somebody needs to turn you on. There.

MR. KENNEDY: I think if I'm --

REP. COHEN: Yeah.

MR. KENNEDY: Thank you Mr. Chairman and all the members of the Committee and my fellow panelists. Thanks for letting me, for taking into account my travel schedules. I filed extensive comments with the committee going through the dozens of midnight regulations passed by the Bush Administration over the past couple of months that impact the environment. I'm going to focus on four of those today, very, very quickly because these are regulations that we think should be seriously considered by your committee and by Congress for review under the Congressional Review Act and also we strongly support the passage of Congressman Nadler's proposed legislation, which could deal with some of these problems.

Very briefly, the Endangered Species Act Waiver which waives the Endangered Species Act requirement for the Pentagon for the Energy Department for all of the government agencies to engage in consultations with national marine fisheries and fish and wildlife service, they're going to engage in an action that is going to harm one of these species.

Number two, the odds of this waste regulations which exempts three million tons of the most highly toxic hazardous waste from regulation under RICRA is clear that this is going to significantly damage public health if we allow this to continue.

Number three, the KFO (ph) rules. The KFO (ph) are factory farms, they're the worst of the polluters of water in America today. They produce 500 million tons of waste every year. Smithfield Foods has one facility called the Circle Four in Utah which has 850,000 hogs. It produces more waste than all the human beings in New York City combined every day.

New York City has spent about $20 billion building sewage treatment plants to treat its waste so that it doesn't pollute the Hudson River and its environments. Smithfield simply dumps that waste into the environment. It's illegal, they've been able to corrupt public officials in order to get away with this. They cannot produce a pound of pork or a pound of bacon or a pork chop cheaper, more efficiently than a family farm or traditional farmer unless they break the law, unless they shift their clean up costs to the public. Their clean up costs are much greater than those that accrue on traditional farms.

A Raleigh News Observer in 1993 won the Pulitzer Prize for a five part series that showed how factory farmers had corrupted virtually every relevant official in the state to get them to overlook the pollution from these facilities. Their whole business plan contemplates illegal behavior and their capacity to avoid enforcement of that. They were easily able to do that during the Bush Administration which was willing to overlook this illegal and corrupt behavior that was damaging communities, the environment, putting family farmers out of work, now the Bush Administration has institutionalized that lack of enforcement through this bill.

Finally, the Buffer Zone Rule and this to me is the most important one, Mr. Chairman, this is the rule that, this is the last barrier that imposed any controls at all on mountain top removal. A couple of weeks ago I flew over the Cumberland and I saw if the American people could see what I saw in West Virginia and Eastern Kentucky there would be a revolution in this country.

We are literally cutting down the Appalachian Mountains with giant, these historic landscapes where Daniel Boone and Davey Crockett roamed, with these giant machines called draglines which are 22 stories high, I flew under one of them in a piper cut. They cost a half a billion dollars and they practically dispense with the need for human labor, which indeed is the point.

I remember a conversation I had with my father when I was 14 years old during the 1960's when he was fighting strip mining in Appalachian. And he said to me, they're not just destroying the environment but they're permanently impoverishing these communities because there's no way that they can regenerate an economy from these barren landscapes that are left behind. And he said they're doing it so they can break the unions, and that's exactly what they did.

When he told me that, there were 140,000 unionized mine workers in West Virginia digging coal out of tunnels in the ground. Today they're fewer than 11,000 miners left in the state, almost none of them are unionized because the strip industry isn't -- they're taking more coal out of West Virginia than they were in 1968 -- the only difference is back then at least some of that money was being left in the state for salaries, for pensions, for reinvestments in the communities. Today it's all going straight up to Wall Street to the corporate headquarters of Massie Coal, Peabody(ph) Coal, Arch Coal, and the big banking houses like Bank of American and Morgan which own these operations.

It's 95 percent of the coal in West Virginia are owned by out of state operations, mainly on Wall Street. They are liquidating the state for cash using these giant machines, 2,500 tons of explosives that they detonate every day in the state of West Virginia, the equivalent of a Hiroshima bomb once a week. They're blowing the tops off the mountains to get at the coal seams beneath and they take the rock debris and rubble and they plow it into the adjacent river valley.

They bury their rivers. They flatten the hollows. They've already buried, according to EPA, 1,200 miles of rivers and streams. They have cut down the 460 biggest mountains in West Virginia.

By the time they get done within a decade, they will have flatten an area the size of Delaware. It's all illegal. You cannot in the United States take rock debris and rubble and dump in into a water way without a Clean Water Act permit and you could never get a permit to do such a thing.

So we serve on the environmental community, Joe Lovitt (ph), Kentuckians for the Commonwealth in front of a conservative, Republican federal judge, Judge Charles Hayden, and Judge Hayden said the same thing I did in the middle of that hearing, Judge Hayden questioned the corps of engineers colonel that allowed all this to happen. And said to him this is obviously illegal, how could you let this happen? And the corps colonel said to him I don't know, Your Honor, we just kind of oozed into it. And Judge Hayden ended that hearing by giving us a complete victory by banning all mountain top minings, saying it's illegal from day one, and it's illegal today, and he enjoined all of it.

Two days from when we got that decision lobbyists from Massie Coal and Peabody Coal met in the back door of the Interior department with Steven J. -- (inaudible) -- first deputy chief who was a former lobbyist for Massie Coal and Peabody Coal and who is now serving a 10.5 month jail sentence and they rewrote one word that the interpretation of one word of the Clean Water Act, the definition of the word fill, to change 30 years of statutory interpretation to effectively overrule Judge Hayden's decision and allow mountain top mining, allow the disposal of rock, debris, rubble, garbage, any solid material into any water body of the United States in all 50 states today.

The one dallier that we were left with after this destruction that happened from the Interior Department because of griels (ph) was the stream buffer rule that said you can't dispose of this stuff within 100 feet of a perennial or effermols (ph) stream, these are the most important streams because they feed the whole watershed. That law was left in place, and as a favor to the industry, in the last days of the Bush Administration, this White House which was the endured servant for the worst of the worst of the worst of these polluters, simply got rid of that rule, the last barrier to cutting down the entire Appalachian Mountains.

Let me just say one final thing. During the Pleistocene Ice Age, where my home is Mount Kisko, New York was under two miles of ice and the rest of North America was turned into tundra with no trees left, the last refuge for those trees, they all retreated into one place, which was the Appalachian Mountains of West Virginia and Eastern Kentucky, that's where they survived the Ice Age. And when the ice withdrew, all the sea, all the forest in North America were re-seeded from Appalachia.

That's why it is the richest forest on earth, the richest eco system, tempera eco system on the face of the earth. It's the only one that survived the Ice Age. And today these companies out of greed and ignorance are doing, are accomplishing what the glaciers couldn't do, which is flattening those mountains and stealing our forest. And this Congress ought to do something about it.

Thank you, Mr. Chairman.

REP. COHEN: Thank you, Mr. Kennedy. I will normally ask questions first, but I'm going to reserve that right and yield to other members who might have questions. Mr. Frank, do you have questions?

REP. FRANK: Mr. Chairman, let me --

REP. COHEN: Ranking Member Frank.

REP. FRANK: -- have questions in a moment and if it's all right, I yield to my colleague Steve King here first.

REP. STEVE KING (R-IA): Thank you, Mr. Frank, our Ranking Member and Mr. Kennedy for your testimony. I regret that I have not read deeply through a lot of the material that you've put out but it's clear to me that you put a lot of material out and it is also clear to me that you have made a visit or two to Iowa. I just reflect back upon a meeting in Clear Lake a few years ago. And the quote that I recall would be, I believe actually this would be exact, large scale hog producers were a greater threat to the United States and democracy than Bin Laden's terrorist network. Is that an accurate quote?

MR. KENNEDY: I don't know if that's accurate but I believe it and I support it and the reason for this is the same reason Teddy Roosevelt said it. Teddy Roosevelt said this nation would never be destroyed by a foreign enemy. But he said that malefactors of great wealth working from within would erode and subvert American democracy. And if you look again, not from me, but from the Raleigh News and Observer, a five-part series on boss hogs that shows how this industry meticulously subverted and corrupted virtually every relevant public official in the state --

REP. KING: Mr. Kennedy, excuse me I've got a lot of questions to ask --

(cross talk.)

REP. COHEN: -- just answer the question of Mr. King please.

MR. KENNEDY: I'm answering your question, sir. And you asked me an inflammatory question and I'm giving you an answer for it. There are laws now --

REP. KING: It's your statement, Mr. Kennedy. Be telling me that your statement is an inflammatory question when I asked if you can confirm it.

MR. KENNEDY: I'm telling you that I can confirm it and I'm explaining it to you so that you understand what I'm talking about.

REP. KING: I'd be happy to introduce your op-ed into the record if you could just suspend for a moment, and not have —

(cross talk.)

REP. COHEN: We cannot have a colloquy here. Mr. Kennedy you go ahead and respond, and if we need extra time for Mr. King to ask questions, we will provide it to Mr. King to be fair to him. But I think it's fair that when the witness is asked a question, he'd be allowed to respond. Mr. Kennedy, proceed.

MR. KENNEDY: Today in 14 states there are laws that make it illegal to criticize food from factory farms.

Now you may say, this is anti-American. I think it is. I think it violates our first amendment right. And you may say this couldn't be true. But ask Oprah Winfrey, who went for a six and a half week jury trial to Texas because she criticized, on her show, factory farm food. You think that's American? Do you think that's democratic?

In three states legislatures have now passed laws that make it illegal to photograph a factory farm, or a factory farm animal from a public road. In Maryland and North Carolina, and many other states have laws that make it illegal for the public to learn where factory farms are located, even though the government has this information. This is an assault on our democracy, wherever you see environmental injury you'll also see the subversion of democracy. And that's what I talked about when I made that statement.

Osama bin Laden has no power over this country to make us change our laws -- we do. And yet the biggest threat to our country is it's legislatures, and particularly those in the possession of large businesses begin restricting our rights at home to do what the Constitution says that we can do. Osama bin Laden can't make us alter our own constitution, but that is happening in this country every day, because of the power of this industry.

REP. CONYERS: Thank you, sir. Mr. King you are recognized and we will give you the time that you need for questions.

REP. KING: Thank you, Mr. Chairman. And consistent with Mr. Kennedy's response, I have in my hand, an op-ed dated Tuesday, May 14th 2002 in The Des Moines Register titled, I'm serious, "Hog Lots Threaten Democracy" by our witness, Mr. Robert F. Kennedy, Jr. And it's part of a public document, and I would ask unanimous consent to add that into the record. And I think that does flesh out the statement that he has made. And I'd also add --

REP. CONYERS: Without objection.

REP. KING: Thank you. And I'd also ask The Des Moines Register article dated April 10th of 2002, that is a news article that stipulates some of this same dialogue that took place in Iowa back then, and then ask consent to enter it into the record as well.

MR. KENNEDY: I'm happy to have that entered into the record with the proviso that the information in the article, this latter article is not necessarily true.

REP. KING: Let the article speak for itself.

(Cross talk.)

MR. KENNEDY: It was taken from representatives of the (Board Producers ?) Council and the American farmers have supported --

REP. CONYERS: Without objection the statement will be allowed in and the statement only speaks to what --

REP. KING: Point of order, Mr. Chairman?

REP. CONYERS: Yes Sir.

REP. KING: Is a witness allowed to object to a unanimous consent request?

REP. CONYERS: Well, no we can't, and he didn't. He did, but it wasn't permitted, and he is out of order, but we understand that, and he didn't understand necessarily the rules on admitting something into the record, because it doesn't stand for the veracity of what's contained therein. Thank you, Mr. King.

REP. KING: Thank you, Mr. Chairman. I appreciate that, and I'd be very happy to go deeply into this hog issue, and I will just make this statement into the record, and that is that on a per head basis, today's hog production in Iowa, and around the country is far, far more favorable to the environment than anything we have ever had before, and it gets better every single day. Our water is cleaner; our soil is cleaner. We're doing a far better job of taking care of that livestock, and we had more hogs in Iowa in 1952 than we have today, and they're far safer today than they were in 1952. But I think the point—

(Cross talk.)

MR. KENNEDY: More family farmers, too.

REP. KING: I will get to you with a question, and you'll have an opportunity to answer it, Mr. Kennedy. And, I think the point the panel is going to be interested in is not so much debating the hog industry in Iowa, although this is an illustration ---

(cross talk.)

REP. : -- Mr. King, for the record. Without objection you have an additional three minutes, if you so desire. Without objection.

REP. KING: Thank you, Mr. Chairman. But I think the point that this panel is going to be interested in is the statement that the hog industry has corrupted public officials. I think that one point you said every public official in the state, apparently had an effect on this —

And I think impugns all elected public officials, and I think that is a very broad statement. And I think your record of making very broad statements, I think, causes us to take a look at the rest of your testimony here today with a bit of a jaundiced eye. And I'll give you an opportunity to respond to that.

MR. KENNEDY: What I said, was that The Raleigh News and Observer concluded, and with strong documentation, a five part series that won the Pulitzer Prize, that every relevant public official in the state of North Carolina had been corrupted by that industry. And I urge you to go read that article. Now what happened, once they did it in North Carolina, they dropped the price of hogs to eight cents a pound at kill weights. At that point states like Iowa, like your state where the public officials could not be that easily corrupted, had to adopt the same system or they would have been out of business.

But it's put out, as you probably know, almost a hundred thousand independent hog farmers in Iowa; it put out 28,700 independent hog farmers in North Carolina.

REP. KING: And I'm going to take it from that the response that you do agree with the statement that every public official in that state had been corrupted by this process.

MR. KENNEDY: I said that that is what The Raleigh News and Observer concluded.

REP. KING: Since you've introduced that into the record, I'm going to take it you are endorsing that statement, and you believe it.

MR. KENNEDY: I'm saying that I didn't investigate every public official in the state, I'm saying that's what The Raleigh News and Observer concluded.

REP. KING: I'll just allow the panel -—

MR. KENNEDY: And won the Pulitzer prize for it. And maybe not every single one was corrupted, I can't tell you. I didn't do the report.

REP. KING: Thank you. And is it also your belief that manure is a hazardous or toxic waste?

MR. KENNEDY: Manure, when it's applied at agronomic rates as a fertilizer, and it has a beneficial use to the land. But when it's applied beyond the agronomic rates, then it becomes a poison to the land, and to the water, and to the people -—

REP. KING: You do understand, Mr. Kennedy, we do have regulations that limit the rate of application so that it is not a pollutant.

MR. KENNEDY: If you think those regulations are enforced, if you think those regulations are effective, I beg you to come to North Carolina with me and look around. Come even to Iowa and look around. That's what the captive agencies are saying, and it is complete bologna.

REP. KING: Well, Mr. Kennedy, I'd remind you that, you know, I live in the middle of this. And the wind blows in four directions, and the water runs downhill -—

(Cross talk.)

REP. KING: -- and I do not see the description you just described. I'm on the panel and I've got to take exception to it.

MR. KENNEDY: I would ask you how much in contributions you received from the Farm Bureau and from the Pork Producers Council.

REP. KING: I'd have to look. I'd have to ask you how you got entered into this industry in the first place?

MR. KENNEDY: How did I get into it?

REP. KING : Yes.

MR. KENNEDY: Because they're the worst polluter in America.

REP. KING: Weren't you assigned to do some public service that got you started in this, Mr. Kennedy?

MR. KENNEDY: You mean, in protecting the environment?

REP. KING: No. I mean assigned to 800 hours of public service that was your gateway into this Hudson River issue.

REP. CONYERS: Time. Time has expired Mr. King and we're -—

REP. KING: You impugn my character with your question, Mr. Kennedy, so I'll question yours.

MR. KENNEDY: If you're asking me how I got into -—

REP. CONYERS: Time. Time has expired, and I'm afraid while this is very interesting, we're not going to be able to continue it. And it does conjure up all thoughts of Barry Goldwater, and extremism, in the defense of liberties, no vice, moderation, there would be no virtue. Mr. Watt, do you seek recognition?

REP. WATT: Yes, yes sir.

REP. CONYERS: You're on.

REP. WATT: Thank you, Mr. Chairman. I appreciate the chairman having this hearing, and this is a classic case where we've not only gone into the weeds, but into the hog farms, which I think gets us back pretty much to where Mr. King ended here. Because he said there were regulations in effect, and Mr. Kennedy said those regulations are not being followed.

The hearing, interestingly enough, is about whether the regulations even will be in effect because when we don't protect ourselves from these kinds of midnight rulemaking procedures, then we have the prospect, at least, that not even the regulations will be in effect. There'll be a new set of regulations that will wipe out the past ones in the middle of the night.

And so for us to focus on any one of the particular, not that this testimony hasn't been interesting and entertaining, and I'm sure there are other people here who will focus on other rules that were either changed, or not changed at the last minute.

The real policy question we are confronted with is how can we protect ourselves against this kind of midnight rulemaking? And that really has no substantive content to it--it's (a or the) policy content. Because sometimes, when we protect ourselves against midnight rulemaking, it will be against protecting ourselves against rule changes that we would like to have made. And sometimes it will be protecting ourselves against changes that we would not like to have made.

But the policy question remains the same, and on that score I think I am fully, although I haven't looked at the details of Mr. Nadler's bill, I'm fully supportive of the concept of his bill, and would just give one illustration where there was bipartisan agreement that the rule should not be changed. I happened to sit on the Financial Services committee, and chaired the Oversight subcommittee, and we had a hearing about the real estate procedures closing process.

The rules that were proposed, right at the end of the Bush administration, Republicans -- there wasn't a single person who showed up, who supported the changes that were being proposed -- either Republican, Democrat, Conservative, Liberal, however you wanted to categorize them. Everybody testified against the changes that were being proposed. And sure enough, in the dark of night, at a time when it appeared that the administration couldn't do -- the new administration wouldn't be able to do anything about it, except in a very limited way by going within 60 days and under the Congressional Review Act, going through something as difficult as those rules, and trying to understand them; there was no way to reverse them.

So, the concept, the policy of having a more transparent process, I hope Mr. King isn't disagreeing with, even though he might want to go with the witness on the weeds, or the hogs, or whatever it is that he was questioning.

The real policy question is, should an administration that's on the way out -- Republican or Democrat, because there will be a Democratic administration at some point on the way out -- remember that, is it a good policy practice to allow them just willy-nilly to change the rules that have been in play for so long?

And I hope there is nobody here who disagrees with the policy that that is a bad idea. I mean, and I would have to say it's a bad idea whether, regardless of the content of what the new rule is, and regardless of whether it's an outgoing Republican administration, or an outgoing Democratic administration, that's what we need to be dealing with in this committee, and I didn't ask Mr. Kennedy any questions, but I hope you'll just say you'll agree with that, or you don't.

MR. KENNEDY: Well, the caveat I have about that, is that under the current regimen, the way that the regulatory process works, there are so many obstacles to new regulations being passed that I takes -- in fact I had a lawsuit against the federal government, against the EPA, in which this became a contention and was settled by the court. And they said that if you jumped -- if a regulatory agency jumps through all the hoops it's supposed to do from the beginning, from the original notice and comment to the end of the regulatory process, that an average regulation takes about eight years to get through the regulatory process.

REP. WATT: But you can't have this both ways, Mr. Kennedy.

MR. KENNEDY: And all I'm saying -—

REP. WATT: As a policy matter it is hard for us to be on both sides of this issue. I understand the concern about the length of time that it takes to do rulemaking, but if every administration is operating under the same set of procedures, they have to get through that process, either far enough in advance of the time so that the new incoming administration, or they shouldn't be able to do it at midnight on January 19 when they're going out on January 20.

MR. KENNEDY: Here's the thing, Congressman, is that during the Clinton administration many of these -- the administration tended to go through all of those steps carefully in the regulatory process, and at the end they ended up with a big balloon of regulations that they dumped in the last couple of months. But in this administration a lot of these midnight regs on the regulatory process just began in May, or June, or July, or August. And in one case -- the case of the Endangered Species Act -- they received tens of thousands of comments. The comment reviewers had to review an average of nine comments per minute in order to get the regulations out. So, you know, they weren't doing what they were supposed to do, these are genuine midnight regulations that didn't receive -—

REP. WATT: I think we are generally on the same side of the issue.

REP. CONYERS: Time has expired.

REP. WATT: I just want to be sure that neither Democrats nor Republicans can game the regulatory system by doing this again.

That's the point I'm trying to make. I yield back.

REP. CONYERS: Thank you, sir. The gentleman concurs with the ranking member and the chair in that it should be bipartisan. Are there others seeking recognition to question Mr. Kennedy? Ranking member? Mr. Franks?

REP. FRANKS: Thank you, Mr. Chairman. Mr. Chairman, first of all I know that in a committee like we have is often difficult to keep bipartisan, but I think I heard some common ground in what Mr. Watt was saying. And, you know, it's one of those rare moments that I want to express a sense of gratitude to him for that because I know that he was the ranking member of a committee that oversaw, or essentially handled a special project, the administrative law process and procedure project of the 21st century. And I think that they came up with a number of very good proposals, and I think that he has hit on the central point here.

You know, a lot of the conservatives had equally strenuous policy criticisms that we level against the Clinton administration for these midnight regulations. And one can debate whether these are good or bad policy things, but I do think that Mr. Watt is correct in that he is suggesting that, regardless of what the policy is, we have to ascertain what the process should be. And it, of course, has to be done within the constraint of the constitution and in some hopefully reasonable fashion that whoever is in the White House can, you know, move forward with their constitutional duties, and at the same time yet be consistent, at least everyone can agree on the process. So, with that, thank you, Mr. Watt.

And Mr. Kennedy, I know that you have a number of policy concerns with the Bush administration's late-term regulations, they call them the midnight rules, I guess, if that's what everyone wants to call them. I hate to use that terminology.

But can you however identify for us the key administrative process concerns that you have about the way in which all presidential administrations go about promulgating so-called midnight rules?

MR. KENNEDY: Well, I think you put your finger on the key issue, Congressman Franks, which is that there is a process in place, you know, and that process, if that process is complied with, you can still pass a regulation on January 15th or January 17th and I don't consider that a midnight regulation. If they've gone through the process of notice, and comment, and adequately reviewed those comments. You know, it could still be a bad regulation, but at least it's complied with the process that's out there.

The problem with these regulations, is they didn't comply with the process. They skirted the process. They took shortcuts. They did things that they weren't supposed to do, in order to get these out the door, much because they were essentially gifts to these industries at the last minute.

REP. FRANKS: Mr. Chairman, I have to suggest to you that apart from the discussion of process, and I always hate it when we say they did it, or they did it, because I don't think that's a good argument here, I think we should have principled persuasion be our watermark here. But I have to contend that the Bush administration was certainly as diligent in trying to get input and do these things as the other administrations were.

Now again, that's not the best argument in the world, because I'm not sure that any of the administrations perhaps would have, you know, gotten all of the input, and specificity that some of us might wish. But the reality is that the Bush administration certainly has no apologies to offer to the Clinton administration, or the Carter administration related to how they moved forward with this process. You can attack the policy for partisan reasons, or for whatever reasons, whatever your convictions might be.

But the Bush administration certainly more than comported with the trend of the past. And so, I think our focus should be on reforming this process, and then we can debate the policy in that, you know, in the midst of all of that. So, with that, Mr. Chairman, I would yield back.

REP. CONYERS: Thank you, Mr. Franks. God has given us this place in 2009 and so this is the administration we have to look to. But you are right, we should look prospectively at all administrations, and that two wrongs don't make a right, and all those other things.

Mr. Kennedy, what are particular rules that came into place in the last 90 days or so that are most dangerous to the environment?

MR. KENNEDY: The rules that I have mentioned, which is the Buffer Zone Rule that got rid of the hundred foot buffer around streams. But these are the rules that the Hazardous Waste Exemption Rule, this is the rule that exempts hazardous wastes that can be burned as fuel. So, it can be burned in incinerators, it's about three million tons of highly toxic hazardous wastes every year.

What we know about that waste is that about 80 percent of the people who handle that, and now they're exempt from all of the requirements of RICRA that they safely handle it, that they safely transport it, that they inventory it, and document it, that the people who transport that, 80 percent of them, have been cited in the past for violating the laws in this area. For example, trucking companies, small trucking companies that take a load of PCB's, and instead of taking them to the dump and documenting them, they just dump them out on the road, or something like that. And, essentially all of this waste, anything that essentially can be burned in an incinerator, is now exempt from the requirements of RICRA.

Under the Endangered Species Act, another regulation which is very, very damaging, which we think again is one of the ones we've selected for, it ought to be reviewed under the Congressional Review Act. Normally if the Department of Defense takes an action that is going to endanger a species, that's going to further endanger a listed species, they have to do a consultation with the Fish and Wildlife Service or with NIST.

In the past there has been 70,000 of these consultations done, and only five percent of the actions have been altered or stopped. So it's not a huge administrative burden, it doesn't stop the agency from doing things that it wants to do, but it plays a valuable role. Now what the new rule says, is that they don't have to do that consultation. They can do an internal evaluation about whether or not there is going to be a problem, and just go ahead and do it without consulting, without any public notice, without consulting any of the other agencies of government.

Again, the (CAFA rule ?), the Factory Farmer Rule is another critical one. One of the midnight rules was an oil shale leasing rule that allows that waives any kind of sensible or fundamental controls for oil shale drilling on 20 million acres of public land in the Western states.

We don't know what the oil shale drilling is going to look like, we don't know what the industry is going to look like. The industry doesn't exist today. We ought to be able to look at that industry, say here is the best available technologies, let's do this instead. The new regulation just says, here's two million acres, and do anything you want with it, and we're not going to have any federal controls over what you do. It doesn't make any sense.

REP. CONYERS: Let me ask you this, I understand the policy considerations that you have and we share, but are you familiar with procedural defects in the implementation of any of these regulations that we should specifically look at and for in terms of reforming or repealing these regulations if there was due process?

MR. KENNEDY: Well yeah. The Endangered Species Regulation, for example, and this is in the testimony, received something like 150,000 comments in the narrow comment period that they opened, and that each comment -- some of these comments were 20 or 30 pages long, they were very well thought out, they were filed by interest groups all over the country. These comments were given on average, the reviewers who were charged with reviewing them, were given on average a minute to review every nine of those comments. Some of those comments could have been 20 or 40 pages long, and they had to review nine a minute.

So, this is not, you know, this is not what we think of when we think of American democracy, there's an opportunity to --

REP. CONYERS: Is there a problem there with the regulatory review process that a law or in fact one that due process was used?

MR. KENNEDY: Again, I would focus less on the process, than on looking, you know, at these regulations and how they were done. You know, I've been reforming all of the regulatory review process, which I think is burdensome enough to pass a regulation. I would hesitate to put more burdens on passing of regulations. I think that it takes eight years, at this point, to pass a regulation if you do it properly.

What I would do is look at these specific regulations, how they were done, and many of these violated the current regulatory process in order to get passed. I would take a look at that, that is outlined in my testimony, and I assume the testimony of the other panelist that they experience the same kind of problems with their regulations, where there were shortcuts taken where there was regulatory procedures were ignored. And that these regulations just slip through, they literally were midnight regulations. They weren't just regulations that happened to be passed during January or December. They were literally jammed through and ignored the regulatory process.

REP. CONYERS: Does another member of the panel seek recognition?

REP. HOWARD COBLE (R-NC): Mr. Chairman?

REP. CONYERS: Mr. Coble.

REP. COBLE: Its good to have the panel with us. Is Mr. Watt still here? Mr. Watt I'm going to revisit briefly the weeds and the hog farms just a minute. Mr. Kennedy, by the way, it's good to have all of you here.

Mr. Kennedy, I realize you were quoting from the article, but I take umbrage with the conclusion that every elected official in North Carolina has been corrupted by that issue, but I've realized that was not your conclusion.

REP. WATT: Will the gentleman yield?

REP. COBLE: Yes sir.

MR. WATT: You all are ignoring one word. It was that every relevant government official -- I take the word relevant to be the people who were actually impacting that process. I didn't take it personally. I'm from North Carolina, too. And I just hope that the chairman doesn't take it personally. Not that he's irrelevant, but I don't think he's relevant in the sense that they were talking about.

REP. COBLE: Well I wanted to heard on that matter.

Mr. Chairman, this has been an enlightening hearing, thus far. You, Mr. Chairman, and the ranking member both indicated that the Bush administration did not create a case of first impression about midnight regulation. Many administrations have done it, and I'm not really that bothered by it, unless the process abrogates or undermines the Administrative Procedure Act. Now that brings it right into focus, I think if that is in fact the case.

Mr. Kennedy, do you have any specific concerns about what midnight regulation that may have erupted for more of a better way than the Bush or Clinton administration that did perhaps undermine the process?

MR. KENNEDY: Yes sir. And again that's outlined in detail for each of these regulations in my testimony, in the submitted testimony. The specific ways that the Administrative Procedure Act was underminded in order to jam through these regulations. That's why we call them midnight regulations. Listen, we have on NRDC's website, we have 460 just bad regulations, environmental rollbacks listed there. We're not targeting those. We think those were bad, but they went through the administrative process. The midnight regulations that we're talking about here were regulations that basically skirted the process, in order to be jammed through during the last 60 days. So, all of them have that kind of problem.

REP. COBLE: Well, I thank you for that. And Mr. Chairman, I still don't believe this is a crisis. It may be a problem, but I don't think it's a crisis. And I look forward to seeing what develops subsequently. And I yield back.

REP. CONYERS: Thank you, Mr. Coble. If there are no other members seeking recognition. Mr. Franks?

REP. FRANKS: Mr. Chairman, just briefly, the one point that I would make. A lot of these regulations take eight years at the present circumstance, so how in the world can a president whose going to be there for eight years do anything but midnight regulations?

MR. KENNEDY: Well again, when I use the term midnight regulations, I'm not using the term to refer to regulations that went through that regulatory process over the eight years, and then happen to be passed in the last month of this administration. I'm using the term to refer to regulations that were conceived and passed during the last two months and really skirted that whole administrative process. I think the regulatory process takes much too long, but in fact, that's what happens. And if you go through that process, I have no complaint. I might not like the regulation, but I have no complaint from an administrative point of view.

REP. COHEN: Mr. Kennedy, we thank you for your time. If there are no other questions, then with deference to Wilson Pickett, we'll continue to refer to it as midnight regulations. You're excused, and I appreciate your time and your attendance.

MR. KENNEDY: Thank you, chairman.

REP. COHEN: For the rest of the panel, we'll start. We thought we had votes 40 minutes ago, but Congress operates in its own time. Our second witness will be Mr. Gary D. Bass. Dr. Bass is the founder and executive director of the OMB Watch, a non-profit research and advocacy organization that promotes greater government accountability and transparency and increase citizen participation in public policy decisions. He is well known for assisting non-profit organizations and better understanding federal rules affecting their groups and constituencies and in 2003 created NP Action as a one-stop website on building non-profit advocacy.

He's co-authored several books. Seen but not Heard is the book in 2007; Strengthening Nonprofit Advocacy, which was published by the Aspen Institute. Prior to founding OMB Watch, Dr. Bass was president of Human Services Information Center, where he wrote other books and numerous articles on human services issues and published the Human Services INSIDER, a bimonthly newsletter on the politics of federal human services programs. He most notably worked on the preparation of the First Annual Report to Congress on implementation of IDEA, education for all handicapped children and served as special assistant to Wilbur Cohen, then chair of Michigan Governor's Task Force on the Investigation and Prevention of Abuse in Residential Institutions.

Our third witness will be Lynn Rhinehart. Ms. Rhinehart is an associate general counsel for the AFL-CIO, a federation representing 55 affiliated unions and 10 million working men and women. She's been in that position since 1996. Among her responsibilities is the coordination of the federation's legal work on occupational safety and health issues, advising the federation's health and safety department on legislative and regulatory issues pertaining to safety and health. Ms. Rhinehart clerked for two years for the Honorable Joyce Green in the U.S. District Court for the District of Columbia. And from '87 to 1990 she worked as a professional staff member for the Senate Subcommittee on Labor chaired by the late Howard Metzenbaum. She has published numerous legal writings and has served as contributing author to Occupational Safety and Health Law, the leading treatise on workplace safety and health laws.

Our fourth witness is Veronique de Rugy, a senior research fellow at the Mercatus Center, previously a resident at the American Enterprise Institute, a policy analyst at the Cato Institute, and a research fellow at the Atlas Economic Research Foundation. Her research interests include the federal budget, homeland security, tech competition, and financial privacy issues; co-author of Action or Taxation published in Switzerland in '96; currently on the Board of Directors for the Center for Freedom and Prosperity; previously the director of academic programs for the Institute for Humane Studies, Europe and France.

And our fifth witness is Mr. Michael Abramowicz. He specializes in law and economics, spanning areas including intellectual property, civil procedure, corporate law, administrative law, and insurance law at George Washington Law School. He has published numerous law reviews in his book, "Predictocracy: Market Mechanisms for Public and Private Decision Making." It was published with the Yale University Press.

Before coming to GW, he was at George Mason School of Law. He also has served as a visiting assistant professor at Northwestern School of Law and as an associate professor at the University of Chicago School of Law.

And our final witness will be Curtis Copeland, a specialist in American national government at CRS. Dr. Copeland's expertise is appropriately relevant to today's hearing in federal rulemaking and regulatory policy. He has previously testified before this subcommittee and is one of the three CRS experts who are assisting the subcommittee in the conduct of its administrative law project. His contribution to the project are deeply appreciated. Prior to joining CRS, he held a variety of positions at the Government Accountability Office over a 23-year period.

I thank all the witnesses for being here and for acquiescing to Mr. Kennedy's schedule. And with that, Dr. Bass, will you proceed with your testimony?

GARY BASS: Thank you, Mr. Chairman, and I commend and the committee for having this hearing first out of the box. I think it's -- 25 years I've been following regulatory issues at the federal level. This is the first time I've seen Congress jump in with great energy, and the last witness demonstrated that energy, so very interesting. I also want to come back to your opening comment, where you described this issue of midnight regulation as one of both procedure and substance. And I think we had this conversation with Mr. Kennedy's statement, where both issues were being talked about almost simultaneously.

The breadth of what we're calling midnight regulations is overwhelming, and that's why it creates an emotional issue. It touches not only the environmental issues that Mr. Kennedy talked about, but it ranges everywhere from issues dealing with privacy of workers under the Family and Medical Leave. It deals with issues all the way over to low income families getting health care services under Medicaid. It deals with a range of issues of auto protections and consumer protections. I'm thinking of the extension, if you will, of the amount of number of consecutive hours that truck drivers can drive, all the way down to privatizing public toll roads. The point is, this range of midnight regulations is so extensive that it has engendered so much energy and emotion because we got to keep in mind, these rules affect people. They affect everyone in this country, and I understand the energy that just occurred in the interchange because of that.

I don't think the issue is the number of rules that fall into this midnight regulation category. I think it is an issue about what impact it has had on people. And I think it is also about a consistent tone that Mr. Kennedy referred to about deregulation and serving certain interests. I think it is also that it wouldn't matter, in my mind, whether it occurred at midnight or whether it occurred at the beginning of an administration or the middle. It is the amazing amount of regulation that was put together in a short time span that is reason enough for Congress to bring congressional oversight to this issue.

Congressman Watt, in response to your questions, I think this is not just an issue about ending midnight regulation. Government must continue to do its work -- valuable work -- to protect health, safety, environment, consumer protections, a range of services in the regulatory front. We might be having a vastly different discussion if the administration -- the last administration -- used its waning time to address say financial regulatory issues, or if it addressed chemical security, or if it addressed food safety. It chose to use its time for these other kind of agenda that make it much more troubling and make it harder to determine whether or not you should just end midnight regulation as a concept. We want to keep government working. We want the best of government, and we want to weed out the bad parts.

Having said that, I think the Bolton memo that the chairman referred to at the very opening was nothing more than camouflage for a strategy to tie the hands of the next administration in many ways. The idea of that memo, although the deadlines all slipped -- the idea of the memo was to make sure that the rules were published, that is printed in the Federal Register as final, and made effective before the next administration came in, thereby tying the next administration's ability to undue many of those rules.

Mr. Kennedy referred to the endangered species as almost a mockery of democracy when he had nine -- I had seven -- comments were reviewed per minute. I think that the Bolton memo established a speedy process that greatly undermined the ability of the agencies to do their work in the right kind of manner. While it may have not violated law in certain cases, it certainly violated the spirit of doing rulemaking in a prudent and effective manner.

So what are we concerned about in the public interest world? There are really three categories of these midnight rules that we're concerned with. Those, I'll call them rules in the pipeline. That's the kind that the past administration put a handcuff on one wrist of the incoming administration. The second are rules that got published as final rules but are not yet effective. That's putting the handcuff on the other wrist too. Then the third category are final rules that were published and are effective. And that's being hog tied. Those are the ones -- probably a bad choice of words.

(Laughter.)

REP. COHEN: Yeah, punny.

MR. BASS: Let me just conclude by saying that the Obama administration fixed the first two with the Rahm Emanuel memo and the OMB Director Orszag memo. It did not address that final category, and that's what we need to be doing.

REP. COHEN: Thank you, Dr. Bass. Your time is up, and I appreciate your not using any of the language that was in the Rahm Emanuel memo.

MR. BASS: (Laughing.)

REP. COHEN: Ms. Rhinehard, will you begin your testimony?

LYNN RHINEHART: Thank you, Mr. Chairman, and members of the subcommittee. I thank you for the opportunity to testify here today and for holding this important hearing. Representative Franks, I'm sorry about the loss in the Super Bowl, but coming from Michigan with the 0 and 16 Lions, we respect the fact that your team was able to get as far as it did -- (laughing).

To fully appreciate the impact of the Bush administration's last minute rules as they affect working people, it's important to contrast what the administration did do in its final months in office with what it didn't do during the eight years that the Bush administration was in charge. The Bush administration was one, that with rare exception, refused to issue significant rules to protect worker health and safety; refused to issue rules to improve workers' wage and hour protections, except in unusual circumstances. The only major wage and hour rulemaking that the administration conducted was to weaken overtime protections for workers. And then suddenly, this same administration ratcheted up its rulemaking activity in its final months and rushed out a number of rules that are harmful to workers.

I've described a number of these rules in my written testimony, rules on conflicts of interest in providing investment advice to workers receiving 401(k)s; rules making it harder for workers to take Family and Medical Leave Act leave; rules that increase the number of hours truckers could be required to drive, to the detriment of their health and the public's health and safety. But in the time that we have available this morning, I'd like to highlight the Department of Labor's last-minute rules on the H-2A and H-2B visa programs, because I think they're illustrative of midnight rulemaking at its worst -- significant rules that are rushed through the process in a deliberate effort to cement an outgoing administration's policy views and hoist them on the incoming administration to the detriment of workers.

The H-2A and H-2B visa programs provide visas to allow employers to hire foreign workers on a temporary basis in the agricultural and seasonal industries in situations where there are not enough workers available for the jobs. For years, the system had safeguards in place to protect U.S. and foreign workers and to prevent abuse. For example, there was a government pre-hire certification process through which the federal government and state agencies verified employers' claims that there were not enough domestic workers to do the jobs in question. The H-2A program had wage standards; other labor protections, like the 50 Percent Rule, that created incentives for employers to hire U.S. workers rather than going and hiring foreign workers.

The H-2B program was limited to temporary jobs of no more than 10 months duration. Under the new rules, "temporary" has now been redefined as up to three years, which is hardly a temporary job. These protections were eliminated by the Bush administration in its new H-2A and H-2B rules, rules that were rushed through the process, issued in December well after the supposed November 1st deadline in the Bolton memo, and allowed to take effect in the minimum 30 days allowed by the Administrative Procedure Act rather than the usual 60 or more days that is typical for significant rules of this nature.

We are very concerned that these new rules are going to disadvantage U.S. workers, drive down wages, and weaken protections for both U.S. and H-2B and H-2A foreign workers. They're a prime example of midnight regulations that need to be stopped through a congressional rider or through disapproval under the Congressional Review Act. So what can be done about rules like this? As I had mentioned, Congress has tools available through legislative riders and through the Congressional Review Act. The administrative agencies also have tools available to them to undo what they view as problematic rules.

As other witnesses have commented, of course the problem is that doing the new rulemaking takes time, and with respect to the H-2A, H- 2B rules and many of these other midnight rules, the rules are already in effect. And so the clock is ticking, and the harmful consequences of the new rules are taking hold during the time period that the new administration is doing the new rulemaking to try to undo these harmful effects of the rules. So there's some urgency to taking action to address what are viewed as the most egregious, problematic midnight rules.

There's also a resource impact on agencies. Every dollar spent by agencies undoing a bad rule is a dollar that they don't have available to spend on issuing new, good, protective rules. So we would urge Congress to take this into consideration and to make sure that the regulatory agencies have the money in hand to both deal with problems left by the prior administration, as well as to get on with the business of protecting workers and the public health and environment in this new administration.

I'd like to just make one last comment, which is I think you're hearing some agreement here today that not all midnight rules are the same. And there are midnight rules where we might disagree with the policy outcome -- or the policy decision of the former administration, and there are examples where we do. But the rules didn't shortcut the process. There were lengthy public comment periods. There was lengthy deliberation of the rules. Nobody was really surprised that the rules came out. They might have been disappointed, but they weren't surprised.

I would say that the Family and Medical Leave Act rules are an example of that. We knew those rules were coming. We don't like aspects of them. We don't object to other aspects of them, and we hope that the new administration, working with Congress, will address the problems in those rules. But they weren't really midnight in the same sense of the H-2A, H-2B rules, the rules on investment advice that I mentioned that were started and finished and made effective in the very few last months of the Bush administration. That is the category of midnight rules that are of particular concern to us and I would think would be of particular concern to the Congress. Thank you.

REP. COHEN: Thank you, Ms. Rhinehart. And now we would proceed with the testimony of Dr. De Rugy -- De Rugy, correct?

MS. DE RUGY: Absolutely.

REP. COHEN: Absolutely, certainly.

MS. DE RUGY: I'm very impressed. But over the years, I've learned to respond to whatever name I hear. Chairman Cohen, Ranking Member Franks, and distinguished members of the subcommittee, it is an honor to appear before you today to discuss the problems of and solutions to the midnight regulation phenomenon. As a senior research fellow with the Mercatus Center, a nonpartisan, university based research education and outreach organization affiliated with George Mason University, my colleague and I have worked on these issues extensively. And I am concerned about the effect this phenomenon has on good governance.

In his inaugural address, President Obama committed to accountable and pragmatic government. Unfortunately, at the end of every presidency, agencies trample on these values as they issue forward of last-minute regulation. If Congress does not reform things in the process today, the end of the Obama administration will likely be no different in this regard than those that have proceeded it. After all, in spite of effort within the Bush administration to prevent an outburst of last-minute rules, too little has changed since the frantic last days of the Clinton presidency.

The Mercatus Center's work over the years demonstrates that the midnight regulations phenomenon is systemic and crosses party lines. At the end of every administration, republican or democrat, there is a dramatic spike in regulation. This spike is especially pronounced when the transition is to a president of the opposite party. The most common explanation in the literature for this phenomenon is the attempt by the administration to extend its influence into the future. Knowing its successor will not share its policy or priority, there is an incentive to write in stone as many of its policies as possible.

There are two other reasons why midnight regulations are pernicious. First, after Election Day, a lame dog president faces little accountability. He will never again stand for election, nor will he have to deal with Congress in the future. This lack of accountability frees the president and his administration to enact regulations that previously had been politically impossible.

Second, and more importantly, the midnight regulation phenomenon dilutes oversight by the Office of Information and Regulatory Affairs. OIRA regulatory review exists to ensure that agencies have carefully considered alternative approaches to regulations, that they have correctly estimated the cost and benefits of these alternatives in order to find the most efficient course of action. By its nature, this type of reasoned economic oversight of proposed regulations requires time. Unfortunately, the point (ph) of regulation at the end of an administration weakens this oversight.

My colleague, Jerry Brito, and I found that in the first seven years of the Bush administration, OIRA reviewed an average of seven economically significant regulations per month. Over the last three months, however, that number had doubled to14. Moreover, while the number of regulations OIRA reviews at the end of the presidential terms while it's spiked, it's staff and budgets remains constant. It means basically the time it has to review each regulation decreases. Another of my colleagues, Patrick McLaughlin, has actually put out this study that shows that that review time is slashed in two.

To address this issue with success, a flexible cap on the number of regulations that an agency to submit to OIRA at any one time. This cap would be tied to resources available to OIRA, which could be increased if necessary. The midnight period, however, also highlights persistent problems with OIRA oversight during the regular process. Since its creation, OIRA staff has been cut into in the budget, and constant dollars has shrunk by about a third. These downwards trends hamper the president's ability to effectively manage regulation paperwork and interagency coordination.

But any increase in staffing and spending will be useless unless Congress addresses a more fundamental issue, the ability of OIRA to carry out its mission varies both across agency and across administrations. Depending on the degree of latitude granted to the OMB director and the OIRA administrator, consistent management of the quality of cost benefit analysis has been broadly inconsistent. For example, different agencies are given a pass on the quality of their regulatory analysis or on any application of that analysis for decision making by a particular administration. OMB is essentially told to back off in these cases.

Congress and the executive branch must give OIRA both the resources and the ability to hold agencies accountable for producing effective and cost efficient rules, Ensuring that these principles apply during the midnight period, when accountability is reduced, these are even more important. Finally, Congress should dedicate itself to writing clearer, more detailed, and more definitive statutes that require sound analysis of regulation. In this way, Congress would better exercise the policy making authority entrusted to it by the Constitution. Thank you.

REP. COHEN: Thank you, doctor. I appreciate your finishing before the red light and for your testimony. Professor, Abramowicz.

MICHAEL ABRAMOWICZ: Thank you, Mr. Chairman --

REP. COHEN: You're welcome.

MR. ABRAMOWICZ: -- and members of the subcommittee. In the first part of my remarks, I would like to focus on potentially negative and unforeseen consequences to legislative deprecation of midnight rules. I will then turn to a brief analysis of some of the problems that may arise should H.R. 34, a firm proposal to allow incoming administration to disapprove of midnight rules, be passed. Finally, I will turn to a broader discussion of the administrative process and how it might be strengthened to reduce idiosyncratic and unadvised executive branch decision making without turning a president into a 15/16th president, prohibited from exercising the full power of the executive branch during the so-called lame duck period.

The proposal to deprecate midnight rules could make an outgoing presidential administration less likely to pass rules simply designed to slow down the incoming administration. But it is doubtful that enactment of such proposals would help the new administration overall. It takes some time for an agency to become fully staffed and then to assess its priorities. Midnight rulemaking on relative routine matters may be helpful to the new administration, allowing smaller issues to be resolved, thus permitting focus on future challenges. Once deprived of their ability to have the final say on whether regulations are issued, administrative officials near the end of a term may feel that they will not receive credit for any rulemaking initiatives that would come into effect only should the next administration permit them.

Moreover, they might worry that disapproval could be embarrassing. As a result, they are likely to hold off even on many regulations that the new administration would not disapprove. This will lead to a build up of many low profile regulatory initiatives, slowing the start up time for the new administration. The passage of legislation deprecating midnight rules might not even be effective in suppressing the issuance of controversial regulation. It might simply push the enactment of regulations 90 days earlier to just before the presidential election. This has hazards of its own. Decisions on whether to complete high profile regulatory initiatives that have been under review would depend increasingly on partisan political concerns. Of course, the vast majority of regulations would fly under the radar of presidential politics. This, however, merely emphasizes the futility of any effort to eliminate the incentive that administrations have to complete rulemaking initiatives that they have begun.

H.R. 34 leaves many unanswered questions. Some problems with specific language of H.R. 34 should be easily fixable. For example, the current definition of a midnight rule applies to quote, "a rule adopted by an agency within the final 90 days a president serves in office." Read literally, this would appear to apply regardless of the reason that a president leaves office, including if he or she dies or resigns.

Other problems might not be fixed so easily. The bill does not make clear whether a president's decision to make an exception to the midnight rulemaking ban or a subsequent agency's decision whether to disapprove of a regulation is subject to judicial review. A cornerstone of our administrative process is the requirement of reasoned decision making, and leaving these decisions entirely unchecked would be inconsistent with this requirement. Excessively intrusive judicial review, on the other hand, could undermine the effectiveness of this reform.

Midnight rulemaking can be seen problematic not so much in and of itself but as problematic in what is signaled more generally. Because midnight regulations occur so near the transition, they highlight the fact that different administrations are likely to pursue different objectives. Our administrative process can be seen, in part, as a set of tools that ensures that much of the regulatory state's functioning will operate with some consistency regardless of the occupant of the Oval Office. Because agency regulations must go through notice and comment, agency officials must prioritize reform. We do not end up with one code of federal regulations for democratic administrations and another version for republican administrations.

Even if one believes that administrative agencies have too much leeway to move policies over to their ideological priorities, disallowing midnight regulations is a crude response. It is akin to proposals to enact a moratorium on all rulemaking. Other regulatory tools can help achieve the beneficial end of regulatory continuity without artificially freezing the administrative process. For example, the continued use and improvement of cost benefit analysis and other forms of regulatory review and reduce the risks that regulations will depend on ideology or caprice not only during the midnight period but during the entirety of a presidential administration. Thank you again.

REP. COHEN: Thank you, Professor Abramowicz. And Dr. Copeland, you're recognized.

CURTIS COPELAND: Thank you. Mr. Chairman, members of the committee, thank you for inviting me here today to discuss midnight rulemaking. As you mentioned in your opening statement, in May 2008, President Bush's Chief of Staff, Joshua Bolton, sent a memorandum to federal agencies telling them to issue the administration's final regulations by November 1st. He said this deadline was being established to avoid the tendency of issuing midnight rules just before a president leaves office.

Data from GAO and from OMB indicate that while the level of regulatory activity increased significantly in the final months of the Bush administration, most of those rules were published early enough so that they had taken effect by the time President Obama took office on January 20th. This includes the four rules that Mr. Kennedy mentioned in his testimony, the respite rule that Mr. Watt mentioned, and the H-2A rule that Ms. Rhinehart mentioned. However, other final rules of concern had been published in the Federal Register, but had not taken effect, and this includes the Investment Advice Rule that Ms. Rhinehart mentioned, and some proposed rules that were never published as final rules.

Both the Obama administration and Congress have a number of options on how to address these midnight regulations. And the effectiveness of those options depends, in part, on how far those rules have progressed in the rulemaking process. One presidential approach has already been undertaken. As has been mentioned, on the afternoon that President Obama took office, White House Chief of Staff Rahm Emanuel issued a memorandum to federal agencies telling them to one, not send new rules to the Federal Register; two, to withdraw any rules that had been sent but that had not been published; and three, consider extending for 60 days the effective dates of rules that have been published but had not taken effect.

This memorandum continued a long tradition of regulatory moratoriums at the start of a presidency. However, the Emanuel memorandum does not address any of the controversial midnight regulations that have already taken effect. To stop or alter those rules, or even just to change their effective date, the Obama administration will have to go through the notice and comment rulemaking process. While that process can be shortened by the agencies for good cause, courts have indicated that legitimate reasons must accompany such actions. On the other hand, for any rule that has been proposed but not published as a final rule, the Obama administration can simply publish a notice of withdrawal in the Federal Register to prevent any future action on the rule.

Congress also has several options to stop midnight rules. For example, the Congressional Review Act, or CRA, was enacted in 1996 to give Congress more control over agency rulemaking by establishing a set of fast track disapproval procedures. However, because any president is likely to veto CRA resolutions disapproving one of his own agency's rules, the act has been used only once in the last 13 years. In fact, Congress may only be able to use the CRA after a presidential transition in which the party in control of the White House changes, and the new president is of the same party as the majority in Congress, the very conditions that currently exist.

Under the CRA's carryover provisions, any final rule that was issued by the Bush administration after May 15th, 2008 can now be the subject of a resolution of disapproval. According to GAO's database, this timeframe includes about 1800 Bush administration rules, including about 700 significant or substantive rules. Another congressional option is to include a provision in the Appropriations Act prohibiting the use of funds to make a proposed rule final or to prohibit the implementation or enforcement of rules that have already taken effect. Although the CRA has been used only one time, Congress has included dozens of these types of restrictions in the Appropriations Act for at least the last 10 years.

However, unlike CRA resolutions of disapproval, these appropriations restrictions do not eliminate the underlying rule, are typically only in effect for the time period covered by the appropriation, and have other potential limitations.

A third hybrid approach is for Congress to give the Obama administration new authority to stop midnight rules. H.R. 34, as introduced by Representative Nadler, is an example of this approach. However, to have the desired effect, key terms like "rule," "adopted," and "agency head" will need to be carefully defined. Also, Congress will have to consider the balance of power ramifications of giving the president or executive branch officials power that it has previously reserved only to itself. Mr. Chairman, that completes my testimony. I'd be happy to answer any questions.

REP. COHEN: Thank you, Dr. Copeland. And I appreciate each of the members of the panel for their attendance and their remarks. We now will have an opportunity for questioning, and I will recognize myself for questioning. The first is for Dr. Bass. The list of 25 troublesome midnight regulations listed in your testimony, which do you believe are the most egregious and should be addressed by Congress and/or the new administration?

MR. BASS: Of the 25, all 25, that's why we listed them. This is an example of the problem that we're starting to see more of, which is everyone wants the top one or two. What was so surprising about the Bush activity at the end of the administration was the wealth of these rules. You heard Dr. Copeland talk about the numbers. It was quite a large number that you mentioned that are out there. These 25 are -- most all these are now effective, minus two of them. It seems to me there is no one size fits all solution for all of these. At this stage, we are going to have to make sure that Congress and the Obama administration work in a coordinated fashion to resolve, rule by rule, how do deal with these.

REP. COHEN: And when you say those 25 are troublesome, are you talking about procedure as well as substance?

MR. BASS: A mixture of both. There were some -- Mr. Kennedy described some rushed examples, like on the Endangered Species. I think there are others. For example, we may all disagree on the HHS healthcare provider conscience rule. We may have very different values about it. But what was striking about the process is the OMB review of the rule, which is usually measured in weeks or months, was done in hours. And what that meant is that agencies like the EEOC that normally would comment on a rule, didn't get a chance to even comment on the rule itself. That means that it isn't a violation of law, it's a violation of process, of good rulemaking. That's what causes the problem with many of these.

REP. COHEN: You mentioned that many of the Bush midnight regulations were favors to special interests. Which regulations were you referring to and which special interests were the primary beneficiaries of Bush midnight rules? For example, I don't know if you know Mr. William Wicterman (ph), a former lobbyist for the NFL, worked in this capacity at the White House Office of Public Liaison on a controversial midnight regulation dealing with the implementation of the Internet gambling law. Is that one of the issues that you raised in your remarks, that trouble you?

MR. BASS: We didn't specifically raise that, but that would be an example of the kind of thing we're talking about. There are really three types of issues. One is the influence of money and politics, as you're suggesting. There's uncertainty when there's opacity with many of these rules about who is getting the best deal out of this. The second is industry-wide. Mr. Kennedy talked about the mountaintop mining as a rule that services a particular industry. That's another type of concern.

And then I think the third kind of issue that's at bay here is simply the notion of a broader anti-regulatory deregulatory agenda. And there's some irony that the Bush administration -- we all know the Bush administration was never friendly to regulation. And yet, they chose to use the regulatory process as the vehicle for achieving much of the policy and priorities which was deregulatory in the last stages of this administration.

REP. COHEN: Professor Abramowicz, let me ask you a question. You mentioned a 15th, 16th president. I presume you're assuming two terms and breaking it into half years, or is that just kind of a --

MR. ABRAMOWICZ: I was assuming -- perhaps my math is wrong -- if we had a -- three months is a fourth of a year and so the three month period would be 1/16 of a presidential term. So I was actually assuming a four year term. And of course I recognize that the president will continue to exercise the powers of the office even in that last 1/16 beyond the executive branch. The concern is diminishing the powers or potentially even essentially eliminating them within that sphere of influence.

REP. COHEN: You said that you were afraid that maybe some folks would be embarrassed to publish last minute regulations for fear they'd be overturned. Can you cite me an example of a politician who's been embarrassed by something they wanted to do?

MR. ABRAMOWICZ: That's a good point, Mr. Chairman. I think it's still possible on many things that fly below the radar. Officials in these agencies who are not necessarily running for elective office, might be concerned and might hold back on progressing out of concern that they might look bad if the regulations were disapproved.

REP. COHEN: And from your testimony you see this as a bipartisan problem that you're seeing.

MR. ABRAMOWICZ: Yes, midnight regulations have occurred in Republican and Democratic administrations alike.

REP. COHEN: Some people wonder why interest organizations are not challenging each individual rule under the Administrative Procedures Act? Are these midnight regulations difficult to challenge under the Administrative Procedures Act and therefore Congressional action might be warranted to give a more efficient process for challenge?

MR. ABRAMOWICZ: I don't think so, Mr. Chairman. I think we do have an ordinary litigation process in which one can raise procedural and substantive objections to regulations. And indeed, if in fact a regulation has not gone through the customary review processes, if in fact there have been comments that have been completely ignored, as for example Mr. Kennedy has suggested has happened, that should considerably weaken the case of the agency if it subsequently attempts to defend the rule in court.

If there is litigation against the agency challenging a particular rule, if the agency simply hasn't dotted its "i" and crossed it "t" by responding to comments, then under the general hardlook doctrine that the courts apply in these circumstances, the rule probably would be struck down by the courts in any event. So it's true to certain lengths that administrations may have a temptation to take shortcuts at the end of an administration. But in doing so they take the risk that the regulations will not be durable in any event because they will not survive judicial review.

REP. COHEN: Thank you, professor. My time is expired.

Mr. Franks.

REP. FRANKS: Mr. Chairman, I'll be incredibly brief and perhaps I could ask Professor Abramowicz for a concise answer. I agree with your testimony. Can you give us what you consider the key constitutional and prudential -- prudent limits on the degree to which Congress could proscribe the president from engaging in end of term rule-making? And what could be done in your mind that would be within the constitutional constraints?

MR. ABRAMOWICZ: That's an excellent question. Certainly some of the suggestions that Dr. deRugy suggested such as increasing funding of OIRA (ph), is clearly within Congressional prerogatives, potentially even within an administrative, executive prerogative at the end of an administration. That would certainly be a prudent thing to do. Your question, while requesting a brief response, brings up broad issues of the unitary executive, a very controversial area of constitutional law. Those who believe in a unitary executive might argue that some curtailment of the midnight regulation power could be constitutionally problematic.

REP. FRANKS: Well thank you, Mr. Chairman. And may I just say, you done good here for your first shot.

REP. COHEN: Thank you, sir. I appreciate the compliment and I look forward to working with you on this issue in a bipartisan manner because it's the chair's opinion, as we said in the opening statement, that this affects all administrations. It is systemic that folks want to get done what they can get done, and sometimes Parkinson's Law is in effect and the time at work and all those things come together.

I'd like to thank all our witnesses for their testimony today. Without objection members will have five legislative days to submit any additional written questions which we will forward to the witnesses and ask that you answer as promptly as you can. They'll be made a part of the record. Without objection the record will remain open for five legislative days for the submission of any other additional material. Again I thank everyone for their time and patience, particularly our ranking member. This hearing of the Subcommittee on Commercial and Administrative Law is adjourned.

END.

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