should set forth and discuss the fundamental economic assumptions underlying agency actions and the role that economic, social, consumer, environmental and other considerations play in the development of agency policy. The plan should be combined with the agency's proposals for reducing paperwork, decreasing delay and eliminating unnecessary regulation of small business. These plans should be submitted. to the appropriate Congressional committees on a fixed schedule. ACUS should also respond to requests of Congressional committees for reviews and analysis of particular regulatory programs.

The Administrative Conference has traditionally dealt with regulatory and administrative issues from the perspective of procedure and management. We believe this approach remains appropriate. We do not wish to interfere with traditional independent regulatory agency control over substantive policy. However, we believe it has been demonstrated that some form of central guidance is necessary with respect to agency procedures and management functions.

The present statutory structure of the Conference can form the basis of the revitalized agency. The Administrative Conference Act gives the Conference extensive authority to:

(1) study the efficiency, adequacy, and fairness of the administrative procedure used by administrative agencies in carrying out administrative programs, and make recommendations to administrative agencies, collectively or individually, and to the President, Congress, or the Judicial Conference of the United States, in connection therewith, as it considers appropriate,

(2) arrange for interchange among administrative agencies of information potentially useful in improving administrative procedure; and

(3) collect information and statistics from administrative agencies and publish such reports as it considers useful for evaluating and improving administrative procedure.

Moreover, "administrative procedure," "administrative agencies" and "administrative programs" are defined sufficiently broadly to permit ACUS to make recommendations with respect to both independent and executive branch regulatory agencies and programs. It is also our view that the present statute gives the Administrative Conference the power to issue recommendations or advisory guidelines on broad issues of agency practice and management unrelated to particular statutes such as the Administrative Procedure Act. We also believe that the Administrative Conference has the power to make the issuance of such guidelines subject to agency and public comment in much the same manner as in the case of notice and comment rulemaking. We would expect that before issuing guidelines, ACUS would consult widely with appropriate public and private entities to the maximum extent possible. At the discretion of ACUS, representatives of the agencies effected by the guidelines should be allowed to present their views orally in public hearings. However, we emphasize that ACUS should not be required to adhere to the requirements of section 553 of the Administrative Procedure Act in issuing such guidelines. The following functions are the principal ones that we believe should be performed by a central agency charged with responsibility for reform of regulatory and related processes.

1. Providing guidance for laws of general applicability

We recommend that ACUS have responsibility for issuing guidelines on and monitoring, on a regular and consistent basis, agency compliance with statutory and executive order requirements of general applicability dealing with procedure and management. This includes the President's Executive Order 12044 "Improving Government Regulation," and any similar requirements subsequently enacted in statutory form. It also includes the Administrative Procedure Act, the Federal Advisory Committee Act, the Federal Register Act, the Freedom of Information Act, the Privacy Act of 1974, and the Government in the Sunshine Act. Responsibility for issuing guidelines for compliance in these various areas is now scattered among several different agencies, as indicated below in greater detail. It is our view that agency implementation and periodical interpretation of the procedural requirements of the laws of general applicability should be monitored and assessed systematically and continuously instead of merely when a problem is apparent. Such sustained attention to the need for refinement, adjustment, elaboration or modification of the procedures generally prescribed by these acts fits precisely with the research, audit, advisory and consultative functions of the Administrative Conference contemplated here.

We do not believe, however, that it is possible or desirable to provide for rulemaking with sanctions and enforcement powers, or to give ACUS power to affect substantive matters. We recommend that any guidelines issued by ACUS be solely advisory, and not have the effect of regulations.

(a) Executive Order 12044

The President's Executive Order 12044, "Improving Government Regulation" is concerned primarily with the review of existing regulations and the development of new regulations. It seeks to regularize and strengthen the development process, and in so doing to make regulations more effective, reasonable and understandable. The Order attempts to achieve the goal of improving existing and future regulation by developing regulations through a process which ensures that:

(a) the need for and purposes of the regulation are clearly established;

(b) heads of agencies and policy officials exercise effective oversight;

(c) opportunity exists for early participation and comment by other Federal agencies, State and local governments, businesses, organizations and individual members of the public; (d) meaningful alternatives are considered and analyzed before the regulation is issued; and

(e) compliance costs, paperwork and other burdens on the public are minimized.

The Executive Order gives the Office of Management and Budget uthority to "assure the effective implementation" of the order and charges OMB with reporting to the President "on the effectiveness of the Order and agency compliance with its provisions". But "independent regulatory agencies" are specifically excluded from coverage

of the Order because the President wished to preserve their independent status. He has, however, requested the chairman of 18 specifically listed agencies to voluntarily apply the policies and procedures of the Order. But no unit is designated to oversee the implementation of these policies and procedures by these independent agencies adopting them. It would be inappropriate for OMB to exercise such authority over the independent regulatory agencies for the same reasons the President felt it necessary to exclude them from the coverage of the Executive Order.

A letter to President Carter dated Dec. 16, 1977 sent by 13 Senate Chairmen and ranking minority Members of Committees concerned with regulation, indicated general agreement "with the basic objectives" of the Executive Order. In that letter, however, the Senators urged the President to take the action he did in excepting the independent regulatory agencies from coverage of the Executive Order. We believe that the regulatory agencies should voluntarily adopt the procedures set forth in the Executive Order. Many of these procedures have been recommended in previous volumes of this Committee's Study on Federal Regulation.

In chapter four of this volume, we recommend that Congress adopt legislation establishing a regulatory impact analysis requirement for all Federal agencies. Our recommendations in that regard are not dissimilar from the substance of President Carter's Executive Order. Congress should assume responsibility for actively overseeing agency compliance with this statute. However, a selected number of economic impact statements should be subject to periodic review outside the agencies proposing regulations. In addition, a revitalized Administrative Conference should provide guidance and monitor agency compliance with this statute.

(b) Government in the Sunshine Act

As indicated, the Administrative Conference presently has a statutory concern with the implementation of the Government in the Sunshine Act. It has, pursuant to this consultative role, held meetings and consultations with agency personnel on adherence to the requirements of the law. It has also published an "Interpretive Guide to the Government in the Sunshine Act". This guide stemmed from the Office of the Chairman's statutorily mandated responsibility of consulting with the 47 affected agencies in development of their implementing regulations. This effort is the kind of guidance we recommend that AČUS continue for this law and for the others under discussion here.

The major issues in administering the Sunshine law deal with the exemptions to the general rule of open meetings and the definitions of terms such as "agency," "meeting," and "agency business." We suggest that guidance for interpretation of these matters should be assigned to ACUS, which would engage in monitoring agency adherence to the law, would suggest interpretation of the law, would offer advice on particular situations and would be in a position to report to Congress on the need, if any, for statutory adjustment or Congressional intervention.

(c) Federal Advisory Committee Act (Public Law 92–463)

This law provides, among other things, that advisory committee meetings shall be open to the public and that written materials of advisory committees shall be made publicly available, subject to the Freedom of Information Act exemptions. The Advisory Committee Act also required the President and the Office of Management and Budget to establish procedures and guidelines to improve advisory committee management and to foster public accountability of existing committees. Pursuant to this authority, from 1974 to 1976, OMB issued various circulars providing guidance for implementation of the Act and conducted annual comprehensive reviews of advisory committees. As part of President Carter's Reorganization Plan No. 1 of 1977, however, the Committee Management Secretariat consisting of three people was transferred from OMB to the General Services Administration. This was done apparently to reduce the size of OMB by removing a function not considered central to OMB's primary mission. OMB retained certain responsibilities which are set forth in OMB Director McIntyre's statement to this Committee as follows:

The specific responsibilities assigned to OMB by the Federal Advisory Committee Act were transferred to the General Services Administration by Reorganization Plan No. 1 of 1977 and Executive Order No. 12024. However, as you know, Director Lance indicated last fall that OMB would continue to play the following role in advisory committee management. Monitor GSA's actions as part of its general management oversight responsibilities;

Make sure that GSA's revision of Circular No. A-63 incorporates all appropriate changes;

Backstop and support GSA whenever called upon to do so;

Be a court of last resort in disputes over the continuation, expiration, or creation of advisory committees; and Review the annual report of Federal Advisory Committees.

I assure you that OMB will carry out this commitment and, in fact, we have continued to work closely with GSA since the transfer last November.

It is our view that because of the close relationship of the Advisory Committee Act to the other openness in government laws, and because of the importance of imposing proper management procedures on advisory committees, oversight for the Act should be assigned to a single agency interested in these issues. We recommend that the Federal Advisory Committee Act should be amended to give ACUS responsibility for suggesting procedures and guidelines to improve advisory committee management and to foster public accountability of existing committees. Such legislation should also reassign to ACUS the functions transferred to GSA under Reorganization Plan No. 1 of 1977.

The purposes of the Sunshine and Advisory Committee laws are identical in one respect-they both seek to insure as much public business as possible is carried on in public view. The same issue

basically, under what circumstances should meetings be allowed to be closed-is involved in both acts. A single agency should provide guidance for both of these laws. Moreover, because the exemptions in these two laws are closely related to the Freedom of Information and Privacy Act exemptions, the identical agency should also provide guidance for these laws.

(d) Privacy Act of 1974

During the Congress' consideration of the bills which resulted in the Privacy Act of 1974, the Senate passed a bill which would have established an independent Privacy Protection Commission with advisory and monitoring functions. However, the House version creating only a temporary Privacy Protection Study Commission prevailed in the final version of the law. The Act as passed provides that the Office of Management and Budget shall "develop guidelines and regulations for the use of agencies in implementing the provisions" of the Privacy Act and shall "provide continuing assistance to and oversight of the implementation of the provisions" of the law by agencies.

Pursuant to this direction, OMB, with the aid of the Department of Justice's Office of Legal Counsel, issued a set of guidelines when the law became effective in September, 1975. These guidelines deal with agency compliance and with the interpretation of the exemptions of the Act. In practice, OMB has provided little day-to-day guidance to agencies in the sometimes complicated issues arising under the Privacy Act. For example, in a recent effort, dubbed Project Match, to obtain information on welfare fraud and individuals in default on student loans, the Department of Health, Education, and Welfare requested a computer tape on all civilian employees of the U.S. Government from the Civil Service Commission. It also asked the Defense Department for similar information on military employees. Each agency interpreted the dictates of the Privacy Act differently. In the end, HEW obtained the information from both CSC and DOD, but under different interpretation of the law and with OMB playing a rather late, passive and minor role. Without an agency with commitment to the purpose of the law and with an interest in consistent interpretations of the law, confusion will prevail.

The Act also requires that reports on new or materially altered record systems be sent to OMB and to Congress. When the Act became effective in September, 1975, OMB was required to review the adequacy of notices of systems of records by the agencies. Again, there was an insufficient allocation of resources to make such oversight meaningful. For example, the Federal Bureau of Investigation filed notice of a single system, maintaining that all subsidiary systems were reachable through a central index. Although this view was later disputed by Congressional committees and by GAO, OMB did not insist that the FBI separately list their various systems. Since the initial filings, OMB has done somewhat better in evaluating new systems, but there remains a large number of systems that have never been adequately evaluated. Thus, one of the purposes of the Act-the reduction in the amount of information on individuals maintained by the federal government-remains unfulfilled. OMB has also assigned responsibility