14 1 voluntary and uncompensated services without regard to the 2 provisions of section 1342 of title 31, United States Code. 3 4 COMPLIANCE WITH FEDERAL ADVISORY COMMITTEE ACT SEC. 11. (a) Each agency establishing a negotiated rule 5 making committee under this Act shall comply with the pro6 visions of the Federal Advisory Committee Act with respect 7 to such negotiated rule making committee, except that meet8 ings of individuals for the purpose of considering and advising 9 an agency on the feasibility of establishing a negotiated rule 10 making committee shall not be subject to the requirement to 11 charter an advisory committee specified in section 9(c) of the 12 Federal Advisory Committee Act. 13 (b) Meetings of subgroups or caucuses of a negotiated 14 rule making committee may be in closed session for the pur15 pose of determining negotiating positions or for developing 16 alternative proposals for consideration by the entire negotiat17 ed rule making committee in open session. 18 (c) Members of a negotiated rule making committee 19 shall be responsible for their own expenses of participation in 20 such negotiated rule making committee, except that an 21 agency may agree, pursuant to section 7(d) of the Federal 22 Advisory Committee Act, to pay reasonable travel and per 23 diem expenses, and reasonable compensation, to persons af24 fected by the rule if such persons certify that they do not 25 have adequate financial resources to participate in such nego26 tiated rule making committee and if the agency determines OS 1504 IS 15 1 that their membership on the negotiated rule making commit 2 tee is necessary to assure adequate representation of their 3 interests. 4 5 6 ROLE OF THE ADMINISTRATIVE CONFERENCE OF THE UNITED STATES SEC. 12. (a) An agency should consult with the Admin 7 istrative Conference of the United States for information and 8 administrative assistance in forming a negotiated rule making 9 committee, and with the Administrative Conference of the 10 United States and other public or private individuals or orga11 nizations for information and assistance relating to negotia12 tion and mediation processes. 13 (b) The Administrative Conference of the United States, 14 in consultation with the Federal Mediation and Conciliation 15 Service, shall maintain a roster of individuals who are quali16 fied to act as convenors or mediators in negotiated rule 17 making proceedings. The roster shall include individuals both 18 from government agencies and private groups, and shall be 19 made available upon request. Agencies also may utilize 20 rosters maintained by other public or private individuals or 21 organizations. 22 (c) The Administrative Conference of the United States 23 is authorized to enter into contracts for the services of media24 tors and convenors which may be used by government agen25 cies, on an elective basis, in negotiated rule making proceed26 ings. Payment for mediation or convenor services obtained OS 1504 IS 16 1 pursuant to such a contract shall be made by the agency 2 obtaining the services, unless the Chairman of the Adminis 3 trative Conference agrees to pay for such services pursuant 4 to subsection (f). 5 (d) The Administrative Conference of the United States 6 shall compile and maintain data on negotiated rule making 7 proceedings to assist agencies and parties in conducting 8 agency proceedings. Each agency engaged in negotiated rule 9 making shall provide to the Administrative Conference a 10 copy of each report submitted to the agency by a negotiated 11 rule making committee pursuant to section 8 and such addi12 tional information as may be required by the Chairman of the 13 Administrative Conference of the United States to enable the 14 Chairman to comply with this subsection. The Administrative 15 Conference of the United States shall review and analyze the 16 reports received under this subsection in each calendar year 17 and shall transmit an annual report to the Congress contain18 ing recommendations concerning the use of the negotiated 19 rule making process. 20 (e) The Administrative Conference of the United States 21 is authorized to provide training in negotiated rule making 22 processes to interested Federal personnel either on a reim23 bursable or non-reimbursable basis. Such training may be ex24 tended to private individuals on a reimbursable basis. 06 1504 IS 17 1 (f) The Chairman of the Administrative Conference of 2 the United States is authorized to pay, upon request of an 3 agency head, all or part of the expenses of convening and 4 conducting a negotiated rule making proceeding. Such ex5 penses may include, but are not limited to, the costs of con6 venors and mediators, the costs for certain members deter7 mined to be eligible for assistance in accordance with section 8 11(b), administrative costs, and training costs. The determi9 nations with respect to payments under this section shall be 10 at the discretion of such Chairman in furthering the use of 11 negotiated rule making procedures by Federal agencies. 12 13 JUDICIAL REVIEW SEC. 13. Any agency action pertaining to a negotiated 14 rule making procedure shall not be subject to judicial review. 15 Nothing in this section shall bar judicial review of a rule 16 which is otherwise provided by law. 17 18 AUTHORIZATION OF APPROPRIATIONS SEC. 14. To carry out this Act, there are authorized to 19 be appropriated to the Administrative Conference of the 20 United States not in excess of $1,000,000 for each of the 21 fiscal years 1988, 1989, and 1990. TESTIMONY OF MARSHALL J. BREGER Introduction My name is Marshall J. Breger and I serve as Chairman of the Administrative Conference of the United States. Accompanying me are Jeffrey S. Lubbers, research director of the Conference, and staff attorney David M. Pritzker. While the views that I am expressing are those of the Conference and not the Administration, I am pleased to be with you at the first of the Committee's hearings in 1988 on issues related to regulatory reform. I am particularly pleased to be invited to speak generally on the subject of negotiated rulemaking, and to discuss S. 1504 in particular, because this is a process that holds great promise for alleviating some of the inefficiency and unpleasantness about the way in which regulatory agencies have gone about the task of formulating rules. I want to take a moment to explain the institutional basis for my remarks. The Administrative Conference of the United States is an independent agency of the federal government that for twenty years has been working with agencies to improve their administrative procedures. Our recommendations are based on a combination of scholarly research, practical experience, and a continuing dialogue between the Conference and the other agencies. This dialogue is aided by the fact that somewhat more than half of the members of the Conference are high-level officials who represent the various agencies whose programs can benefit from our research and recommendations. Recommendations of the Conference are formally adopted at semi-annual plenary sessions after research, committee discussions, extensive public efforts to obtain the views of interested persons as well as government agencies, and formal debate. My remarks today will be based primarily on recommendations of the Conference adopted in this way, amplified and illustrated by the experience of agencies and others in following the recommended procedures. In the last few years, the Administrative Conference has devoted substantial attention to exploring improved techniques for resolution of regulatory and other disputes in which the |