[House Report 105-11]
[From the U.S. Government Publishing Office]
105th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 105-11
_______________________________________________________________________
DEPARTMENT OF ENERGY STANDARDIZATION ACT OF 1997
_______
March 11, 1997.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______________________________________________________________________
Mr. Bliley, from the Committee on Commerce, submitted the following
R E P O R T
[To accompany H.R. 649]
[Including cost estimate of the Congressional Budget Office]
The Committee on Commerce, to whom was referred the bill
(H.R. 649) to amend sections of the Department of Energy
Organization Act that are obsolete or inconsistent with other
statutes and to repeal a related section of the Federal Energy
Administration Act of 1974, having considered the same, report
favorably thereon without amendment and recommend that the bill
do pass.
CONTENTS
Page
Purpose and Summary.............................................. 1
Background and Need for Legislation.............................. 2
Hearings......................................................... 2
Committee Consideration.......................................... 3
Roll call Votes.................................................. 3
Committee Oversight Findings..................................... 3
Committee on Government Reform and Oversight..................... 3
New Budget Authority and Tax Expenditures........................ 3
Committee Cost Estimate.......................................... 3
Congressional Budget Office Estimate............................. 3
Federal Mandates Statement....................................... 4
Advisory Committee Statement..................................... 5
Constitutional Authority Statement............................... 5
Applicability to Legislative Branch.............................. 5
Section-by-Section Analysis of the Legislation................... 5
Changes in Existing Law Made by the Bill, as Reported............ 5
Purpose and Summary
The purpose of this legislation is to conform public
participation procedures of the Department of Energy to the
standards required of other Federal agencies. Since the
original passage of the Department of Energy Organization Act
and the Federal Energy Administration Act of 1974, the
evolution of the Department's missions, the evolution of
administrative case law, and the enactment of other government-
wide statutes have rendered certain public participation
provisions either obsolete, duplicative, or inconsistent with
government-wide statutes governing rulemaking and advisory
committee management.
Background and Need for Legislation
The Administrative Procedure Act (APA), P.L. 89-554, and
the Federal Advisory Committee Act (FACA), P.L. 92-463,
generally determine the parameters of public involvement in the
Federal government's rulemaking and advisory committee
processes. The general public is provided notice of proposed
rulemakings, a period of time to comment on the proposed rules,
and the opportunity for the agency to consider these comments
prior to the issuance of a final rule. The public is also
afforded the opportunity for involvement, either through actual
participation or through attendance at meetings, in the various
advisory committees which make recommendations to Federal
agencies. This public involvement is a critical aspect of the
Federal rulemaking process, providing a strong stream of public
input into Federal decision making.
The Department of Energy Organization Act (DOE Act), P.L.
95-91, and the Federal Energy Administration Act of 1974
(FEAA), P.L. 93-275, include provisions which, through the
passage of time since their original enactment, have become
inconsistent with the APA and FACA. When originally passed, the
DOE Act and FEAA included language which incorporated a higher
standard of public involvement than was then provided by the
APA and FACA. Since that time, however, a succession of court
cases has interpreted the requirements of the APA and FACA to
be much more stringent than their original application. As a
result, the APA and FACA, as interpreted by courts and
administrative law judges, require a fairly high standard of
public involvement. The requirements of the DOE Act and FEAA
have, in effect, been overtaken by developments surrounding the
APA and FACA.
This situation has led to a duplication of effort within
the Department of Energy (DOE) to comply with the differing
standards within these various statutes. In order to rectify
this situation, H.R. 649 would eliminate those provisions of
the DOE Act and FEAA which conflict with or overlap the
requirements of the APA and FACA. With these changes, DOE's
rulemaking process and administration of advisory committees
would be consistent with that of other Federal agencies.
Hearings
The Subcommittee on Energy and Power held a hearing on H.R.
649 on February 26, 1997. The Subcommittee received testimony
from Mr. Eric Fygi, Deputy General Counsel of the Department of
Energy, who testified in support of the legislation.
Committee Consideration
On February 26, 1997, the Subcommittee on Energy and Power
met in open markup session and approved H.R. 649 for Full
Committee consideration, without amendment, by a voice vote. On
March 5, 1997, the Committee on Commerce met in open markup
session and ordered H.R. 649 reported to the House, without
amendment, by a voice vote.
Rollcall Votes
Clause 2(l)(2)(B) of rule XI of the Rules of the House
requires the Committee to list the recorded votes on the motion
to report legislation and amendments thereto. There were no
recorded votes taken in connection with ordering H.R. 649
reported. A motion by Mr. Bliley to order H.R. 649 reported to
the House, without amendment, was agreed to by a voice vote, a
quorum being present.
Committee Oversight Findings
Pursuant to clause 2(l)(3)(A) of rule XI of the Rules of
the House of Representatives, the Committee held a legislative
hearing and made findings that are reflected in this report.
Committee on Government Reform and Oversight
Pursuant to clause 2(l)(3)(D) of rule XI of the Rules of
the House of Representatives, no oversight findings have been
submitted to the Committee by the Committee on Government
Reform and Oversight.
New Budget Authority and Tax Expenditures
In compliance with clause 2(l)(3)(B) of rule XI of the
Rules of the House of Representatives, the Committee finds that
H.R. 649, the Department of Energy Standardization Act of 1997,
would result in no new or increased budget authority or tax
expenditures or revenues.
Committee Cost Estimate
The Committee adopts as its own the cost estimate prepared
by the Director of the Congressional Budget Office pursuant to
section 403 of the Congressional Budget Act of 1974.
Congressional Budget Office Estimate
Pursuant to clause 2(l)(3)(C) of rule XI of the Rules of
the House of Representatives, the following is the cost
estimate provided by the Congressional Budget Office pursuant
to section 403 of the Congressional Budget Act of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, D.C., March 6, 1997.
Hon. Tom Bliley,
Chairman, Committee on Commerce,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 649, the
Department of Energy Standardization Act of 1997.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Kathleen
Gramp.
Sincerely,
James L. Blum
(For June E. O'Neill, Director.)
Enclosure.
H.R. 649--Department of Energy Standardization Act of 1997
This bill would change the statutory guidelines for various
administrative activities at the Department of Energy (DOE).
Assuming that appropriations are adjusted to be consistent with
the bill, CBO estimates that enacting H.R. 649 would result in
discretionary savings of about $500,000 a year. Because the
bill would not affect direct spending or receipts, pay-as-you-
go procedures would not apply. H.R. 649 contains no
intergovernmental or private-sector mandates and would not
impose any costs on state, local, or tribal governments.
H.R. 649 would eliminate certain statutory requirements
applicable to DOE's procurement actions and advisory
committees. DOE currently must comply with two sets of
standards: those that apply government-wide and some that apply
only to the department. For example, before DOE procurement
rules can be finalized, the department has to issue a proposed
rule and provide for public notice and comment. In contrast,
other agencies are authorized to issue procurement rules
without going through that process. Likewise, all meetings of
DOE's advisory committees must be open to the public unless
they involve documented national security issues or research
and development. Based on information provided by DOE, CBO
estimates that repealing these agency-specific requirements
would reduce the workload associated with procurement actions,
saving the department about $500,000 a year beginning in fiscal
year 1998. CBO estimates that other provisions of the bill
would have no significant budgetary impact.
The CBO staff contact for this estimate is Kathleen Gramp.
This estimate was approved by Robert A. Sunshine, Deputy
Assistant Director for Budget Analysis.
Federal Mandates Statement
The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
Constitutional Authority Statement
Pursuant to clause 2(l)(4) of rule XI of the Rules of the
House of Representatives, the Committee finds that the
Constitutional authority for this legislation is provided in
article I, section 8, clause 3, which grants Congress the power
to regulate commerce with foreign nations, among the several
States, and with the Indian tribes.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Section-by-Section Analysis of the Legislation
Section 1
Section 1 of the bill provides the short title, the
Department of Energy Standardization Act of 1997.
Section 2
Section 2 of the bill consists of two subsections. The
first subsection strikes redundant and conflicting sections of
the Department of Energy Organization Act related to the
promulgation of Department of Energy regulations. After
enactment of this subsection, DOE rulemaking with respect to
public property, contracts, loans, and grants will be conducted
under the same legislative authorities as such rulemaking is
conducted generally, i.e., under the Office of Federal
Procurement Policy Act (41 U.S.C. 418b). Requirements for other
proposed and final DOE rules will be governed by the applicable
provisions of the Administrative Procedure Act (5 U.S.C. 553(c)
and (d)).
The second subsection strikes redundant and conflicting
sections of the Department of Energy Organization Act and the
Federal Energy Administration Act of 1974 relating to advisory
committee management. After enactment of this subsection, DOE
advisory committees will be governed completely by the Federal
Advisory Committee Act (5 U.S.C. Appendix).
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3 of rule XIII of the Rules of the
House of Representatives, changes in existing law made by the
bill, as reported, are shown as follows (existing law proposed
to be omitted is enclosed in black brackets, new matter is
printed in italic, existing law in which no change is proposed
is shown in roman):
DEPARTMENT OF ENERGY ORGANIZATION ACT
* * * * * * *
TITLE V--ADMINISTRATIVE PROCEDURES AND JUDICIAL REVIEW
procedures
Sec. 501. (a) * * *
[(b)(1) In addition to the requirements of subsection (a) of
this section, notice of any proposed rule, regulation, or order
described in subsection (a) shall be given by publication of
such proposed rule, regulation or order in the Federal
Register. Such publication shall be accompanied by a statement
of the research, analysis, and other available information in
support of, the need for, and the probable effect of, any such
proposed rule, regulation, or order. Other effective means of
publicity shall be utilized as may be reasonably calculated to
notify concerned or affected persons of the nature and probable
effect of any such proposed rule, regulation, or order. In each
case, a minimum of thirty days following such publication shall
be provided for an opportunity to comment prior to promulgation
of any such rule, regulation, or order.
[(2) Public notice of all rules, regulations, or orders
described in subsection (a) which are promulgated by officers
of a State or local government agency pursuant to a delegation
under this Act shall be provided by publication of such
proposed rules, regulations, or orders in at least two
newspapers of statewide circulation. If such publication is not
practicable, notice of any such rule, regulation, or order
shall be given by such other means as the officer promulgating
such rule, regulation, or order determines will reasonably
assure wide public notice.
[(3) For the purposes of this title, the exception from the
requirements of section 553 of title 5, United States Code,
provided by subsection (a)(2) of such section with respect to
public property, loans, grants, or contracts shall not be
available.]
[(c)] (b)(1) If the Secretary determines, on his own
initiative or in response to any showing made pursuant to
paragraph (2) (with respect to a proposed rule, regulation, or
order described in subsection (a)) that no substantial issue of
fact or law exists and that such rule, regulation, or order is
unlikely to have a substantial impact on the Nation's economy
or large numbers of individuals or businesses, such proposed
rule, regulation, or order may be promulgated in accordance
with section 553 of title 5, United States Code. If, the
Secretary determines that a substantial issue of fact or law
exists or that such rule, regulation, or order is likely to
have a substantial impact on the Nation's economy or large
numbers of individuals or businesses, an opportunity for oral
presentation of views, data, and arguments shall be provided.
(2) Any person, who would be adversely affected by the
implementation of any proposed rule, regulation, or order who
desires an opportunity for oral presentation of views, data,
and arguments, may submit material supporting the existence of
such substantial issues or such impact.
(3) A transcript shall be kept of any oral presentation with
respect to a rule, regulation, or order described in subsection
(a).
[(d) Following the notice and comment period, including any
oral presentation required by this subsection, the Secretary
may promulgate a rule if the rule is accompanied by an
explanation responding to the major comments, criticisms, and
alternatives offered during the comment period.]
[(e)] (c) The requirements of [subsections (b), (c), and (d)]
subsection (b) of this section may be waived where strict
compliance is found by the Secretary to be likely to cause
serious harm or injury to the public health, safety, or
welfare, and such finding is set out in detail in such rule,
regulation, or order. In the event the requirements of this
section are waived, the requirements shall be satisfied within
a reasonable period of time subsequent to the promulgation of
such rule, regulation, or order.
[(f)] (d)(1) With respect to any rule, regulation, or order
described in subsection (a), the effects of which, except for
indirect effects of an inconsequential nature, are confined
to--
(A) a single unit of local government or the
residents thereof;
(B) a single geographic area within a State or the
residents thereof; or
(C) a single State or the residents thereof;
the Secretary shall, in any case where appropriate, afford an
opportunity for a hearing or the oral presentation of views,
and provide procedures for the holding of such hearing or oral
presentation within the boundaries of the unit of local
government, geographic area, or State described in paragraphs
(A) through (C) of this paragraph as the case may be.
(2) For the purposes of this subsection--
(A) the term ``unit of local government'' means a
county, municipality, town, township, village, or other
unit of general government below the State level; and
(B) the term ``geographic area within a State'' means
a special purpose district or other region recognized
for governmental purpose within such State is not a
unit of local government.
(3) Nothing in this subsection shall be construed as
requiring a hearing or an oral presentation of views where none
is required by this section or other provision of law.
[(g)] (e) Where authorized by any law vested, transferred, or
delegated pursuant to this Act, the Secretary may, by rule,
prescribe procedures for State or local government agencies
authorized by the Secretary to carry out such functions as may
be permitted under applicable law. Such procedures shall apply
to such agencies in lieu of this section, and shall require
that prior to taking any action, such agencies shall take steps
reasonably calculated to provide notice to persons who may be
affected by the action, and shall afford an opportunity for
presentation of views (including oral presentation of views
where practicable) within a reasonable time before taking the
action.
* * * * * * *
TITLE VI--ADMINISTRATIVE PROVISIONS
* * * * * * *
Part B--Personnel Provisions
* * * * * * *
advisory committees
Sec. 624. [(a)] The Secretary is authorized to establish in
accordance with the Federal Advisory Committee Act such
advisory committees as he may deem appropriate to assist in the
performance of his functions. Members of such advisory
committees, other than full-time employees of the Federal
Government, while attending meetings of such committees or
while otherwise serving at the request of the Secretary while
serving away from their homes or regular places of business,
may be allowed travel expenses, including per diem in lieu of
subsistence, as authorized by section 5703 of title 5, United
States Code, for individuals in the Government serving without
pay.
[(b) Section 17 of the Federal Energy Administration Act of
1974 shall be applicable to advisory committees chartered by
the Secretary, or transferred to the Secretary or the
Department under this Act, except that where an advisory
committee advises the Secretary on matters pertaining to
research and development, the Secretary may determine that such
meeting shall be closed because it involves research and
development matters and comes within the exemption of section
552b(c)(4) of title 5, United States Code.]
* * * * * * *
----------
SECTION 17 OF THE FEDERAL ENERGY ADMINISTRATION ACT OF 1974
[advisory committees
[Sec. 17. (a) Whenever the Administrator shall establish or
utilize any board, task force, commission, committee, or
similar group, not composed entirely of full-time Government
employees, to advise with respect to, or to formulate or carry
out, any agreement or plan of action affecting any industry or
segment thereof, the Administrator shall endeavor to insure
that each such group is reasonably representative of the
various points of view and functions of the industry and users
affected, including those of residential, commercial, and
industrial consumers, and shall include, where appropriate,
representation from both State and local governments, and from
representatives of State regulatory utility commissions,
selected after consultation with the respective national
associations.
[(b) Each meeting of such board, task force, commission,
committee, or similar group, shall be open to the public, and
interested persons shall be permitted to attend, appear before,
and file statements with, such group, except that the
Administrator may determine that such meeting shall be closed
in the interest of national security. Such determination shall
be in writing, shall contain a detailed explanation of reasons
in justification of the determination, and shall be made
available to the public.
[(c) All records, reports, transcripts, memoranda, and other
documents, which were prepared for or by such group, shall be
available for public inspection and copying at a single
location in the offices of the Administration.
[(d) Advisory committees established or utilized pursuant to
this Act shall be governed in full by the provisions of the
Federal Advisory Committee Act (Public Law 92-463, 86 Stat.
770), except as inconsistent with this section.]