Plaintiff Emergency Motion

U.S. District Court for the Eastern District of Arkansas Northern Division Don Hamrick, pro se (Non-State Actor) 5860 Wilburn Road Wilburn, Arkansas 72179 -v-

United Nations, et al New York, NY 10017

) ) ) Case No. 1:06cv0044 ) ) ) Plaintiff is Southern Baptist by birth. ) )

PLAINTIFF’S EMERGENCY MOTION IN LIGHT OF RECURRING MULTIPLE MURDER-SUICIDES IN PUBLIC PLACES (i.e. VIRGINIA TECH MASSACRE) AND IN U.S. GOVERNMENT BUILDINGS (i.e., NASA) UNDER THE FAILURE OF OPPRESSIVE & TYRANNICAL LEVEL OF STATE & FEDERAL GUN CONTROL LAWS

MOTION TO DENY DEFENSE’S MOTION TO DISMISS, AND MOTION TO PROCEED WITH THE COLLABORATIVE SYSTEM OF JUSTICE IN ACCORDANCE WITH THE RULE 16(C)(9) FEDERAL RULES OF CIVIL PROCEDURES FOR

SPECIAL PROCEDURES AND

MOTION FOR A COURT ORDER COMPELLING THE ATTORNEY GENERAL TO ABANDON DEFENSE OF THE CASE AND PROCEED UNDER THE COLLABORATIVE SYSTEM OF JUSTICE IN ACCORDANCE WITH TITLE 4, § 3.100 OF THE U.S. ATTORNEY’S MANUAL, “The Attorney General has abandon the defense of any United States of America, or agents who are parties

the inherent authority to . . . action insofar as it involves the any of its agencies, or any of its in their official capacities.”

1

PLAINTIFF DEMANDS HIS FIRST AMENDMENT RIGHT TO PETITION THE U.S. GOVERNMENT FOR REDRESS OF GRIEVANCES AND HIS DUE PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS PLAINTIFF FURTHER DEMANDS THAT THE U.S. ATTORNEY TIM GRIFFIN CONFER DIRECTLY WITH THE ATTORNEY GENERAL ALBERTO GONZALES TO CONSIDER THE COLLABORATIVE SYSTEM OF JUSTICE THROUGH THE FOLLOWING REMEDIES: TITLE 5 U.S. CODE APPENDIX, FEDERAL ADVISORY COMMITTEE ACT TITLE 5, U.S. CODE, NEGOTIATED RULEMAKING WITH THE FEDERAL GOV’T TITLE 14, U.S. CODE, NEGOTIATED RULEMAKING WITH

THE

U.S. COAST GUARD

TO BE ASSISTED BY THE U.S. ADMINISTRATIVE CONFERENCE COUNCIL OF THE UNITED STATES AND FURTHER ASSISTED BY THE MARITIME ADVISORY COMMITTEE FOR OCCUPATIONAL SAFETY AND HEALTH (MACOSH) OF THE U.S. DEPARTMENT OF TRANSPORTATION, OSHA.

2

FEDERAL ADVISORY COMMITTEE ACT

TITLE 5—APPENDIX FEDERAL ADVISORY COMMITTEE ACT 5 U.S.C. APPENDIX § 1. SHORT TITLE This Act may be cited as the “Federal Advisory Committee Act”.

5 U.S.C. APPENDIX § 2. FINDINGS AND PURPOSE (a) The Congress finds that there are numerous committees, boards, commissions, councils, and similar groups which have been established to advise officers and agencies in the executive branch of the Federal Government and that they are frequently a useful and beneficial means of furnishing expert advice, ideas, and diverse opinions to the Federal Government. (b) The Congress further finds and declares that— (1) the need for many existing advisory committees has not been adequately reviewed: (2) new advisory committees should be established only when they are determined to be essential and their number should be kept to the minimum necessary; (3) advisory committees should be terminated when they are no longer carrying out the purposes for which they were established; (4) standards and uniform procedures should govern the establishment, operation, administration, and duration of advisory committees; (5) the Congress and the public should be kept informed with respect to the number, purpose, membership, activities, and cost of advisory committees; and (6) the function of advisory committees should be advisory only, and that all matters under their consideration should be determined, in accordance with law, by the official, agency, or officer involved.

5 U.S.C. APPENDIX § 3. DEFINITIONS For the purpose of this Act— (1) The term “Administrator” means the Administrator of General Services. (2) The term “advisory committee” means any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof (hereafter in this paragraph referred to as “committee”), which is— (A) established by statute or reorganization plan, or (B) established or utilized by the President, or (C) established or utilized by one or more agencies, in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government, except that such term excludes (i) any committee that is composed wholly of full-time, or permanent part-time, officers or employees of the Federal Government, and (ii) any committee that is created by the National Academy of Sciences or the National Academy of Public Administration. 3

FEDERAL ADVISORY COMMITTEE ACT (3) The term “agency” has the same meaning as in section 551 (1) of title 5, United States Code. (4) The term “Presidential advisory committee” means an advisory committee which advises the President.

5 U.S.C. APPENDIX § 4. APPLICABILITY; RESTRICTIONS (a) The provisions of this Act or of any rule, order, or regulation promulgated under this Act shall apply to each advisory committee except to the extent that any Act of Congress establishing any such advisory committee specifically provides otherwise. (b) Nothing in this Act shall be construed to apply to any advisory committee established or utilized by— (1) the Central Intelligence Agency; or (2) the Federal Reserve System. (c) Nothing in this Act shall be construed to apply to any local civic group whose primary function is that of rendering a public service with respect to a Federal program, or any State or local committee, council, board, commission, or similar group established to advise or make recommendations to State or local officials or agencies.

5 U.S.C. APPENDIX § 8. RESPONSIBILITIES OF AGENCY HEADS; ADVISORY COMMITTEE MANAGEMENT OFFICER, DESIGNATION (a) Each agency head shall establish uniform administrative guidelines and management controls for advisory committees established by that agency, which shall be consistent with di­rectives of the Administrator under section 7 and section 10. Each agency shall maintain systematic information on the nature, functions, and operations of each advisory committee within its jurisdiction. (b) The head of each agency which has an advisory committee shall designate an Advisory Committee Management Officer who shall— (1) exercise control and supervision over the establishment, procedures, and accomplishments of advisory committees established by that agency; (2) assemble and maintain the reports, rec­ords, and other papers of any such committee during its existence; and (3) carry out, on behalf of that agency, the provisions of section 552 of title 5, United States Code, with respect to such reports, rec­ords, and other papers. 5 U.S.C. Appendix § 9. Establishment and Purpose of Advisory Committees; Publication in Federal Register; Charter: Filing, Contents, Copy (a) No advisory committee shall be established unless such establishment is— (1) specifically authorized by statute or by the President; or (2) determined as a matter of formal record, by the head of the agency involved after consultation with the Administrator, with timely notice published in the Federal Register, to be in the public interest in connection with the performance of duties imposed on that agency by law. 4

FEDERAL ADVISORY COMMITTEE ACT (b) Unless otherwise specifically provided by statute or Presidential directive, advisory committees shall be utilized solely for advisory functions. Determinations of action to be taken and policy to be expressed with respect to matters upon which an advisory committee reports or makes recommendations shall be made solely by the President or an officer of the Federal Government. (c) No advisory committee shall meet or take any action until an advisory committee charter has been filed with (1) the Administrator, in the case of Presidential advisory committees, or (2) with the head of the agency to whom any advisory committee reports and with the standing committees of the Senate and of the House of Representatives having legislative jurisdiction of such agency. Such charter shall contain the following information: (A) the committee’s official designation; (B) the committee’s objectives and the scope of its activity; (C) the period of time necessary for the committee to carry out its purposes; (D) the agency or official to whom the committee reports; (E) the agency responsible for providing the necessary support for the committee; (F) a description of the duties for which the committee is responsible, and, if such duties are not solely advisory, a specification of the authority for such functions; (G) the estimated annual operating costs in dollars and man-years for such committee; (H) the estimated number and frequency of committee meetings; (I) the committee’s termination date, if less than two years from the date of the committee’s establishment; and (J) the date the charter is filed.

5 U.S.C. APPENDIX § 10. ADVISORY COMMITTEE PROCEDURES; MEETINGS; NOTICE, PUBLICATION IN FEDERAL REGISTER; PEGULATIONS; MINUTES; CERTIFICATION; ANNUAL REPORT; FEDERAL OFFICER OR EMPLOYEE, ATTENDANCE (a) (1) Each advisory committee meeting shall be open to the public. (2) Except when the President determines otherwise for reasons of national security, timely notice of each such meeting shall be published in the Federal Register, and the Administrator shall prescribe regulations to provide for other types of public notice to insure that all interested persons are notified of such meeting prior thereto. (3) Interested persons shall be permitted to attend, appear before, or file statements with any advisory committee, subject to such reasonable rules or regulations as the Administrator may prescribe. (b) Subject to section 552 of title 5, United States Code, the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by each advisory committee shall be available for public inspection and 5

FEDERAL ADVISORY COMMITTEE ACT copying at a single location in the offices of the advisory committee or the agency to which the advisory committee reports until the advisory committee ceases to exist. (c) Detailed minutes of each meeting of each advisory committee shall be kept and shall contain a record of the persons present, a complete and accurate description of matters discussed and conclusions reached, and copies of all reports received, issued, or approved by the advisory committee. The accuracy of all minutes shall be certified to by the chairman of the advisory committee. (d) Subsections (a)(1) and (a)(3) of this section shall not apply to any portion of an advisory committee meeting where the President, or the head of the agency to which the advisory committee reports, determines that such portion of such meeting may be closed to the public in accordance with subsection (c) of section 552b of title 5, United States Code. Any such determination shall be in writing and shall contain the reasons for such determination. If such a determination is made, the advisory committee shall issue a report at least annually setting forth a summary of its activities and such related matters as would be informative to the public consistent with the policy of section 552 (b) of title 5, United States Code. (e) There shall be designated an officer or employee of the Federal Government to chair or attend each meeting of each advisory committee. The officer or employee so designated is authorized, whenever he determines it to be in the public interest, to adjourn any such meeting. No advisory committee shall conduct any meeting in the absence of that officer or employee. (f) Advisory committees shall not hold any meetings except at the call of, or with the advance approval of, a designated officer or employee of the Federal Government, and in the case of advisory committees (other than Presidential advisory committees), with an agenda approved by such officer or employee.

6

ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

5 U.S.C. § 591. Purposes of the ADMINISTRATIVE CONFERENCE UNITED STATES

OF THE

The purposes of this subchapter are— (1) to provide suitable arrangements through which Federal agencies, assisted by outside experts, may cooperatively study mutual problems, exchange information, and develop recommendations for action by proper authorities to the end that private rights may be fully protected and regulatory activities and other Federal responsibilities may be carried out expeditiously in the public interest; (2) to promote more effective public participation and efficiency in the rulemaking process; (3) to reduce unnecessary litigation in the regulatory process; (4) to improve the use of science in the regulatory process; and (5) to improve the effectiveness of laws applicable to the regulatory process.

5 U.S.C. § 593. ADMINISTRATIVE CONFERENCE OF THE UNITED STATES (a) The Administrative Conference of the United States consists of not more than 101 nor less than 75 members appointed as set forth in subsection (b) of this section. (b) The Conference is composed of— (1) a full-time Chairman appointed for a 5-year term by the President, by and with the advice and consent of the Senate. The Chairman is entitled to pay at the highest rate established by statute for the chairman of an independent regulatory board or commission, and may continue to serve until his successor is appointed and has qualified; (2) the chairman of each independent regulatory board or commission or an individual designated by the board or commission; (3) the head of each Executive department or other administrative agency which is designated by the President, or an individual designated by the head of the department or agency; (4) when authorized by the Council referred to in section 595 (b) of this title, one or more appointees from a board, commission, department, or agency referred to in this subsection, designated by the head thereof with, in the case of a board or commission, the approval of the board or commission; (5) individuals appointed by the President to membership on the Council who are not otherwise members of the Conference; and (6) not more than 40 other members appointed by the Chairman, with the approval of the Council, for terms of 2 years, except that the number of members appointed by the Chairman may at no time be less than one-third nor more than two-fifths of the total number of members. The Chairman shall select the members in a manner which will provide broad representation of the views of private citizens and utilize diverse experience. The members shall be members of the practicing bar, scholars in the field of administrative law or government, or others specially informed by knowledge and experience with respect to Federal administrative procedure. 7

ADMINISTRATIVE CONFERENCE OF THE UNITED STATES (c) Members of the Conference, except the Chairman, are not entitled to pay for service. Members appointed from outside the Federal Government are entitled to travel expenses, including per diem instead of subsistence, as authorized by section 5703 of this title for individuals serving without pay.

5 U.S.C. § 594. Powers and duties of the Conference To carry out the purposes of this subchapter, the Administrative Conference of the United States may— (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; (3) collect information and statistics from administrative agencies and publish such reports as it considers useful for evaluating and improving administrative procedure; (4) enter into arrangements with any administrative agency or major organizational unit within an administrative agency pursuant to which the Conference performs any of the functions described in this section; and (5) provide assistance in response to requests relating to the improvement of administrative procedure in foreign countries, subject to the concurrence of the Secretary of State, the Administrator of the Agency for International Development, or the Director of the United States Information Agency, as appropriate, except that— (A) such assistance shall be limited to the analysis of issues relating to administrative procedure, the provision of training of foreign officials in administrative procedure, and the design or improvement of administrative procedure, where the expertise of members of the Conference is indicated; and (B) such assistance may only be undertaken on a fully reimbursable basis, including all direct and indirect administrative costs. Payment for services provided by the Conference pursuant to paragraph (4) shall be credited to the operating account for the Conference and shall remain available until expended.

5 U.S.C. § 595. Organization of the Conference (a) The membership of the Administrative Conference of the United States meeting in plenary session constitutes the Assembly of the Conference. The Assembly has ultimate authority over all activities of the Conference. Specifically, it has the power to— (1) adopt such recommendations as it considers appropriate for improving administrative procedure. A member who disagrees with a recommendation adopted by the Assembly is entitled to enter a dissenting opinion and an alternate proposal in the record of the Conference proceedings, and the opinion and proposal so entered shall accompany the Conference recommendation in a publication or distribution thereof; and (2) adopt bylaws and regulations not inconsistent with this subchapter for carrying out the functions of the Conference, including the creation of such committees as it considers 8

ADMINISTRATIVE CONFERENCE OF THE UNITED STATES necessary for the conduct of studies and the development of recommendations for consideration by the Assembly. (b) The Conference includes a Council composed of the Chairman of the Conference, who is Chairman of the Council, and 10 other members appointed by the President, of whom not more than one-half shall be employees of Federal regulatory agencies or Executive departments. The President may designate a member of the Council as Vice Chairman. During the absence or incapacity of the Chairman, or when that office is vacant, the Vice Chairman shall serve as Chairman. The term of each member, except the Chairman, is 3 years. When the term of a member ends, he may continue to serve until a successor is appointed. However, the service of any member ends when a change in his employment status would make him ineligible for Council membership under the conditions of his original appointment. The Council has the power to— (1) determine the time and place of plenary sessions of the Conference and the agenda for the sessions. The Council shall call at least one plenary session each year; (2) propose bylaws and regulations, including rules of procedure and committee organization, for adoption by the Assembly; (3) make recommendations to the Conference or its committees on a subject germane to the purpose of the Conference; (4) receive and consider reports and recommendations of committees of the Conference and send them to members of the Conference with the views and recommendations of the Council; (5) designate a member of the Council to preside at meetings of the Council in the absence or incapacity of the Chairman and Vice Chairman; (6) designate such additional officers of the Conference as it considers desirable; (7) approve or revise the budgetary proposals of the Chairman; and (8) exercise such other powers as may be delegated to it by the Assembly. (c) The Chairman is the chief executive of the Conference. In that capacity he has the power to— (1) make inquiries into matters he considers important for Conference consideration, including matters proposed by individuals inside or outside the Federal Government; (2) be the official spokesman for the Conference in relations with the several branches and agencies of the Federal Government and with interested organizations and individuals outside the Government, including responsibility for encouraging Federal agencies to carry out the recommendations of the Conference; (3) request agency heads to provide information needed by the Conference, which information shall be supplied to the extent permitted by law; (4) recommend to the Council appropriate subjects for action by the Conference; (5) appoint, with the approval of the Council, members of committees authorized by the bylaws and regulations of the Conference; (6) prepare, for approval of the Council, estimates of the budgetary requirements of the Conference; (7) appoint and fix the pay of employees, define their duties and responsibilities, and direct and supervise their activities; (8) rent office space in the District of Columbia; 9

ADMINISTRATIVE CONFERENCE OF THE UNITED STATES (9) provide necessary services for the Assembly, the Council, and the committees of the Conference; (10) organize and direct studies ordered by the Assembly or the Council, to contract for the performance of such studies with any public or private persons, firm, association, corporation, or institution under title III of the Federal Property and Administrative Services Act of 1949, as amended (41 U.S.C. 251–260), and to use from time to time, as appropriate, experts and consultants who may be employed in accordance with section 3109 of this title at rates not in excess of the maximum rate of pay for grade GS–15 as provided in section 5332 of this title; (11) utilize, with their consent, the services and facilities of Federal agencies and of State and private agencies and instrumentalities with or without reimbursement; (12) accept, hold, administer, and utilize gifts, devises, and bequests of property, both real and personal, for the purpose of aiding and facilitating the work of the Conference. Gifts and bequests of money and proceeds from sales of other property received as gifts, devises, or bequests shall be deposited in the Treasury and shall be disbursed upon the order of the Chairman. Property accepted pursuant to this section, and the proceeds thereof, shall be used as nearly as possible in accordance with the terms of the gifts, devises, or bequests. For purposes of Federal income, estate, or gift taxes, property accepted under this section shall be considered as a gift, devise, or bequest to the United States; (13) accept voluntary and uncompensated services, notwithstanding the provisions of section 1342 of title 31; (14) on request of the head of an agency, furnish assistance and advice on matters of administrative procedure; (15) exercise such additional authority as the Council or Assembly delegates to him; and (16) request any administrative agency to notify the Chairman of its intent to enter into any contract with any person outside the agency to study the efficiency, adequacy, or fairness of an agency proceeding (as defined in section 551 (12) of this title). The Chairman shall preside at meetings of the Council and at each plenary session of the Conference, to which he shall make a full report concerning the affairs of the Conference since the last preceding plenary session. The Chairman, on behalf of the Conference, shall transmit to the President and Congress an annual report and such interim reports as he considers desirable.

5 U.S.C. § 596. Authorization of appropriations There are authorized to be appropriated to carry out this subchapter not more than $3,000,000 for fiscal year 2005, $3,100,000 for fiscal year 2006, and $3,200,000 for fiscal year 2007. Of any amounts appropriated under this section, not more than $2,500 may be made available in each fiscal year for official representation and entertainment expenses for foreign dignitaries.

10

ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

LAST KNOWN ADDRESS OF THE ADMINISTRATIVE CONFERENCE OF THE UNITED STATES (A.C.U.S.) Chair (unknown) Administrative Conference of the United States 2120 L Street, N.W., Suite 500 Washington, D.C. 20037-1568

11

ADMINISTRATIVE CONFERENCE OF THE UNITED STATES American Bar Association on the

Winter 1996 - Vol. 21,No. 2

R.I.P. A.C.U.S. by William Funk, Professor, Lewis and Clark Law School Editor, Administrative and Regulatory Law News American Bar Association 10th Floor, 740 15th Street, NW Washington, DC 20005-1009 E-Mail: [email protected] http://www.abanet.org/adminlaw/news/vol21no2/acus_rip.html On September 13, 1995, a House-Senate conference committee voted to terminate funding for the Administrative Conference of the United States (ACUS). This action may have saved $1.8 million a year, but it eliminated the only federal agency chartered specifically to ensure that federal agency programs are administered fairly, efficiently, and effectively. This "penny-wise, pound-foolish" decision was made despite entreaties on behalf of the Conference from such bipartisan sources as: Justices Stephen Breyer, a Conference member, and Antonin Scalia, a former Conference Chair; Senators Orrin Hatch, Charles Grassley, Carl Levin, and John Glenn; former White House Counsel C. Boyden Gray; David Vladeck, director of the Public Citizen Litigation Group; President Reagan's budget director, James C. Miller; and OMB Director Alice Rivlin. Given until the end of October to wind up affairs, the Conference, its staff, and its accumulated expertise is now spread to the winds.

served without compensation. The primary, although not exclusive, function of the Conference was to study administrative processes with an eye to recommending improvements to Congress and the agencies. It performed this function by commissioning studies by law professors expert in the administrative process that then were reviewed by one of six standing committees: adjudication, administration, governmental processes, judicial review, regulation, and rulemaking. The recommendations developed by committees of the Conference would be considered for adoption by the Assembly in plenary sessions, which were typically held twice a year. The improvements occasioned by the Conferences recommendations are legion. Inasmuch as the Conference never had the power to impose its recommendations on unwilling subjects, the fact that so many of its recommendations bore fruit is a testimony to their intrinsic sense. Some, like the Conference's recommendation in 1968, its first year of operation, to eliminate a jurisdictional amount in suits under the APA, were followed by Congress in passing new legislation. Another example is its recommendation to provide administrative penalty authority to agencies to increase the effectiveness of agency enforcement activities at lower cost, first proposed by the Conference in 1972 and since adopted by Congress in over 200 statutes. A third is its 1980 recommended solution to unseemly races to the courthouse in rulemaking appeals, adopted by Congress in 1988.

Little known "outside the Beltway," ACUS was a unique entity. Comprised of between 75 and 101 individuals drawn from agencies, academia, and the private sector, the Conference was classified as both an independent agency and a federal advisory committee. Organizationally, it consisted of a Chair, a Council, and an Assembly. The Chair, appointed by the President and confirmed by the Senate for a five-year term, was responsible for the day-to-day activities and supervision of the 18 permanent staff. The Council, which functioned like a board of directors, consisted of ten members appointed by the President for three-year terms, five of whom were always current senior federal officials. The Assembly was made up of the Chair, the Council, and the other members of the Conference, a majority of whom had to come from government service. All of the members (other than the Chair)

Other recommendations, like the Conference's early recommendation to eliminate the exemption from the APA's notice-andcomment requirements for rules relating to public 12

ADMINISTRATIVE CONFERENCE OF THE UNITED STATES property, loans, grants, benefits, and contracts, were sufficiently influential to lead agencies to adopt the recommendations on their own. Its recommendation in 1988 on Presidential Transition Workers' Code of Ethical Conduct were used by President Bush as the basis for his transition standards of conduct, and the Clinton administration likewise followed what had become standard procedures. From 1968 to 1995, the Conference issued approximately 200 recommendations, most of which have been at least partially implemented.

included provisions for the Conference to study the effects of the legislation. The Conference's contribution to administrative law and procedure was not limited just to studies. Drawing on its expertise, ACUS issued numerous publications designed to assist agencies in their administrative processes. For example, in 1972 the Conference published the first edition of its Manual for Administrative Law Judges (now in its 3d edition); in 1978 it published its Interpretive Guide to the Government in the Sunshine Act; in 1981 it issued Model Rules for Agency Implementation of the Equal Access to Justice Act. The latter two of these documents were responsive to Congress's requirement for agencies to consult with the Conference in implementing these statutes. In addition, the Conference has published sourcebooks on Federal Administrative Procedure, Negotiated Rulemaking, and Alternative Dispute Resolution, as well as the Guide to Federal Agency Rulemaking.

Probably the area in which the Conference had its greatest influence was in introducing and supporting the use of alternative dispute resolution techniques in agency practice. Its recommendation in 1982 provided procedures by which agencies could negotiate proposed regulations, and it followed the recommendation with support and encouragement to agencies to experiment with this new technique. Ultimately, Congress adopted the Negotiated Rulemaking Act in 1990, virtually copying the procedures contained in the Conference's original recommendation. Similarly, in 1986 the Conference issued the first of some fifteen recommendations on using alternative means of dispute resolution in agency adjudications. In 1990 Congress again followed the Conference's lead and enacted the Administrative Dispute Resolution Act. Recognizing the Conference's leadership role in this area, that Act gave the Conference the principal role for coordinating and promoting ADR in the federal government.

Finally, in recent years, following the collapse of the Soviet Union, Congress authorized the Conference to lend its expertise to newly emerging democracies in their creation of administrative law and procedures. As a result, the Conference sponsored seminars in the Ukraine, Hungary, the People's Republic of China, and South Africa. The ABA has long been a strong supporter of the Conference, and over the years the Conference and the Section on Administrative Law and Regulatory Practice have enjoyed a close and mutually supportive relationship. Many Section Chairs have been active ACUS members, and two Conference Chairs (Jerre Williams and Antonin Scalia) have also chaired this Section. Three other ACUS Chairs have been Section Council Members (Robert Anthony, Reuben Robertson, and Marshall Breger). Jeff Lubbers, the longtime Research Director of the Conference, has been very active in the Section, serving as Rulemaking monitor, Secretary, and currently Council Member. The Section will miss the Conference greatly and hopes that before long it will be reestablished.

Another area in which the Conference had a major influence involved its study of Presidential review of agency rulemaking undertaken during the Reagan administration. This was a subject that had the potential to become highly partisan, but the Conference's reputation for neutrality and expertise enabled it to review the practice, generally validate its exercise, and makes certain recommendations to improve its openness and public acceptability. Because of the Conference's track record of useful and expert studies of the administrative process, all the regulatory reform bills considered by the Senate in the last session

RESURRECTED IN 2004 WITH FUNDING FOR 2005-2007 13

PUBLIC LAW 108–401—OCT. 30, 2004

118 STAT. 2255

Public Law 108–401 108th Congress An Act To amend title 5, United States Code, to authorize appropriations for the Administrative Conference of the United States for fiscal years 2005, 2006, and 2007, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Federal Regulatory Improvement Act of 2004’’.

Oct. 30, 2004 [H.R. 4917]

Federal Regulatory Improvement Act of 2004. 5 USC 101 note.

SEC. 2. PURPOSES.

(a) PURPOSES.—Section 591 of title 5, United States Code, is amended to read as follows: ‘‘§ 591. Purposes ‘‘The purposes of this subchapter are— ‘‘(1) to provide suitable arrangements through which Federal agencies, assisted by outside experts, may cooperatively study mutual problems, exchange information, and develop recommendations for action by proper authorities to the end that private rights may be fully protected and regulatory activities and other Federal responsibilities may be carried out expeditiously in the public interest; ‘‘(2) to promote more effective public participation and efficiency in the rulemaking process; ‘‘(3) to reduce unnecessary litigation in the regulatory process; ‘‘(4) to improve the use of science in the regulatory process; and ‘‘(5) to improve the effectiveness of laws applicable to the regulatory process.’’. (b) CONFORMING AMENDMENTS.—Title 5 of the United States Code is amended— (1) in section 594 by striking ‘‘purpose’’ and inserting ‘‘purposes’’; and (2) in the table of sections of chapter 5 of part I by amending the item relating to section 591 to read as follows: ‘‘591. Purposes’’. SEC. 3. AUTHORIZATION OF APPROPRIATIONS.

Section 596 of title 5, United States Code, is amended to read as follows:

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118 STAT. 2256

PUBLIC LAW 108–401—OCT. 30, 2004

‘‘§ 596. Authorization of appropriations ‘‘There are authorized to be appropriated to carry out this subchapter not more than $3,000,000 for fiscal year 2005, $3,100,000 for fiscal year 2006, and $3,200,000 for fiscal year 2007. Of any amounts appropriated under this section, not more than $2,500 may be made available in each fiscal year for official representation and entertainment expenses for foreign dignitaries.’’. Approved October 30, 2004.

LEGISLATIVE HISTORY—H.R. 4917 (S. 2979): CONGRESSIONAL RECORD, Vol. 150 (2004): Oct. 8, considered and passed House. Oct. 11, considered and passed Senate.

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THE FEDERAL GOVERNMENT & NEGOTIATED RULEMAKING

5 U.S.C. § 553(a). RULE MAKING This section applies, according to the provisions thereof, except to the extent that there is involved: (1) a military or foreign affairs function of the United States; (2) a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.

5 U.S.C. § 561. PURPOSE OF NEGOTIATED RULEMAKING The purpose of this subchapter is to establish a framework for the conduct of negotiated rulemaking, consistent with section 553 of this title, to encourage agencies to use the process when it enhances the informal rulemaking process. Nothing in this subchapter should be construed as an attempt to limit innovation and experimentation with the negotiated rulemaking process or with other innovative rulemaking procedures otherwise authorized by law.

5 U.S.C. § 569. ENCOURAGING NEGOTIATED RULEMAKING (a) The President shall designate an agency or designate or establish an interagency committee to facilitate and encourage agency use of negotiated rulemaking. An agency that is considering, planning, or conducting a negotiated rulemaking may consult with such agency or committee for information and assistance. (b) To carry out the purposes of this subchapter, an agency planning or conducting a negotiated rulemaking may accept, hold, administer, and utilize gifts, devises, and bequests of property, both real and personal if that agency’s acceptance and use of such gifts, devises, or bequests do not create a conflict of interest. Gifts and bequests of money and proceeds from sales of other property received as gifts, devises, or bequests shall be deposited in the Treasury and shall be disbursed upon the order of the head of such agency. Property accepted pursuant to this section, and the proceeds thereof, shall be used as nearly as possible in accordance with the terms of the gifts, devises, or bequests.

5 U.S.C. § 563. DETERMINATION OF NEED FOR NEGOTIATED RULEMAKING COMMITTEE

(a) Determination of Need by the Agency.— An agency may establish a negotiated rulemaking committee to negotiate and develop a proposed rule, if the head of the agency determines that the use of the negotiated rulemaking procedure is in the public interest. In making such a determination, the head of the agency shall consider whether— (1) there is a need for a rule; 16

THE FEDERAL GOVERNMENT & NEGOTIATED RULEMAKING (2) there are a limited number of identifiable interests that will be significantly affected by the rule; (3) there is a reasonable likelihood that a committee can be convened with a balanced representation of persons who— (A) can adequately represent the interests identified under paragraph (2); and (B) are willing to negotiate in good faith to reach a consensus on the proposed rule; (4) there is a reasonable likelihood that a committee will reach a consensus on the proposed rule within a fixed period of time; (5) the negotiated rulemaking procedure will not unreasonably delay the notice of proposed rulemaking and the issuance of the final rule; (6) the agency has adequate resources and is willing to commit such resources, including technical assistance, to the committee; and (7) the agency, to the maximum extent possible consistent with the legal obligations of the agency, will use the consensus of the committee with respect to the proposed rule as the basis for the rule proposed by the agency for notice and comment. (b) Use of Conveners.— (1) Purposes of conveners.— An agency may use the services of a convener to assist the agency in— (A) identifying persons who will be significantly affected by a proposed rule, including residents of rural areas; and (B) conducting discussions with such persons to identify the issues of concern to such persons, and to ascertain whether the establishment of a negotiated rulemaking committee is feasible and appropriate in the particular rulemaking. (2) Duties of conveners.— The convener shall report findings and may make recommendations to the agency. Upon request of the agency, the convener shall ascertain the names of persons who are willing and qualified to represent interests that will be significantly affected by the proposed rule, including residents of rural areas. The report and any recommendations of the convener shall be made available to the public upon request.

17

THE FEDERAL GOVERNMENT & NEGOTIATED RULEMAKING

5 U.S.C. § 564. PUBLICATION OF NOTICE; APPLICATIONS FOR MEMBERSHIP ON COMMITTEES (a) Publication of Notice.— If, after considering the report of a convener or conducting its own assessment, an agency decides to establish a negotiated rulemaking committee, the agency shall publish in the Federal Register and, as appropriate, in trade or other specialized publications, a notice which shall include— (1) an announcement that the agency intends to establish a negotiated rulemaking committee to negotiate and develop a proposed rule; (2) a description of the subject and scope of the rule to be developed, and the issues to be considered; (3) a list of the interests which are likely to be significantly affected by the rule; (4) a list of the persons proposed to represent such interests and the person or persons proposed to represent the agency; (5) a proposed agenda and schedule for completing the work of the committee, including a target date for publication by the agency of a proposed rule for notice and comment; (6) a description of administrative support for the committee to be provided by the agency, including technical assistance; (7) a solicitation for comments on the proposal to establish the committee, and the proposed membership of the negotiated rulemaking committee; and (8) an explanation of how a person may apply or nominate another person for membership on the committee, as provided under subsection (b). (b) Applications for Membership or 1 Committee.— Persons who will be significantly affected by a proposed rule and who believe that their interests will not be adequately represented by any person specified in a notice under subsection (a)(4) may apply for, or nominate another person for, membership on the negotiated rulemaking committee to represent such interests with respect to the proposed rule. Each application or nomination shall include— (1) the name of the applicant or nominee and a description of the interests such person shall represent; (2) evidence that the applicant or nominee is authorized to represent parties related to the interests the person proposes to represent; (3) a written commitment that the applicant or nominee shall actively participate in good faith in the development of the rule under consideration; and (4) the reasons that the persons specified in the notice under subsection (a)(4) do not adequately represent the interests of the person submitting the application or nomination.

18

THE FEDERAL GOVERNMENT & NEGOTIATED RULEMAKING (c) Period for Submission of Comments and Applications.— The agency shall provide for a period of at least 30 calendar days for the submission of comments and applications under this section.

5 U.S.C § 565. ESTABLISHMENT OF COMMITTEE (a) Establishment.— (1) Determination to establish committee.— If after considering comments and applications submitted under section 564, the agency determines that a negotiated rulemaking committee can adequately represent the interests that will be significantly affected by a proposed rule and that it is feasible and appropriate in the particular rulemaking, the agency may establish a negotiated rulemaking committee. In establishing and administering such a committee, the agency shall comply with the Federal Advisory Committee Act with respect to such committee, except as otherwise provided in this subchapter. (2) Determination not to establish committee.— If after considering such comments and applications, the agency decides not to establish a negotiated rulemaking committee, the agency shall promptly publish notice of such decision and the reasons therefor in the Federal Register and, as appropriate, in trade or other specialized publications, a copy of which shall be sent to any person who applied for, or nominated another person for membership on the negotiating [1] rulemaking committee to represent such interests with respect to the proposed rule. (b) Membership.— The agency shall limit membership on a negotiated rulemaking committee to 25 members, unless the agency head determines that a greater number of members is necessary for the functioning of the committee or to achieve balanced membership. Each committee shall include at least one person representing the agency. (c) Administrative Support.— The agency shall provide appropriate administrative support to the negotiated rulemaking committee, including technical assistance.

5 U.S.C. § 566. CONDUCT OF COMMITTEE ACTIVITY (a) Duties of Committee.— Each negotiated rulemaking committee established under this subchapter shall consider the matter proposed by the agency for consideration and shall attempt to reach a consensus concerning a proposed rule with respect to such matter and any other matter the committee determines is relevant to the proposed rule. (b) Representatives of Agency on Committee.— The person or persons representing the agency on a negotiated rulemaking committee shall participate in the deliberations and activities of the committee with the same rights and responsibilities as other members of the committee, and shall be authorized to fully represent the agency in the discussions and negotiations of the committee. (c) Selecting Facilitator.— Notwithstanding section 10(e) of the Federal Advisory Committee Act, an agency may nominate either a person from the Federal Government or a person from outside the Federal Government to serve as a facilitator for the negotiations of the committee, subject to the approval of the committee by consensus. If the committee does not approve the nominee of the agency for fa­cilitator, the agency shall submit a substitute nomination. If a committee does not approve any nominee of the agency for facilitator, the committee shall select by consensus a person to serve as facilitator. A person designated to represent the 19

THE FEDERAL GOVERNMENT & NEGOTIATED RULEMAKING agency in substantive issues may not serve as facilitator or otherwise chair the committee. (d) Duties of Facilitator.— A facilitator approved or selected by a negotiated rulemaking committee shall— (1) chair the meetings of the committee in an impartial manner; (2) impartially assist the members of the committee in conducting discussions and negotiations; and (3) manage the keeping of minutes and records as required under section 10(b) and (c) of the Federal Advisory Committee Act, except that any personal notes and materials of the facilitator or of the members of a committee shall not be subject to section 552 of this title. (e) Committee Procedures.— A negotiated rulemaking committee established under this subchapter may adopt procedures for the operation of the committee. No provision of section 553 of this title shall apply to the procedures of a negotiated rulemaking committee. (f) Report of Committee.— If a committee reaches a consensus on a proposed rule, at the conclusion of negotiations the committee shall transmit to the agency that established the committee a report containing the proposed rule. If the committee does not reach a consensus on a proposed rule, the committee may transmit to the agency a report specifying any areas in which the committee reached a consensus. The committee may include in a report any other information, recommendations, or materials that the committee considers appropriate. Any committee member may include as an addendum to the report additional information, recommendations, or materials. (g) Records of Committee.— In addition to the report required by subsection (f), a committee shall submit to the agency the records required under section 10(b) and (c) of the Federal Advisory Committee Act.

5 U.S.C. § 567. TERMINATION OF COMMITTEE A negotiated rulemaking committee shall terminate upon promulgation of the final rule under consideration, unless the committee’s charter contains an earlier termination date or the agency, after consulting the committee, or the committee itself specifies an earlier termination date.

5 U.S.C. § 568. SERVICES, FACILITIES, AND PAYMENT OF COMMITTEE MEMBER EXPENSES (a) Services of Conveners and Facilitators.— (1) In general.— An agency may employ or enter into contracts for the services of an individual or organization to serve as a convener or facilitator for a negotiated rulemaking committee under this subchapter, or may use the services of a Government employee to act as a convener or a facilitator for such a committee. (2) Determination of conflicting interests.— An agency shall determine whether a person under consideration to serve as convener or facilitator of a committee under paragraph (1) has any financial or other interest that would preclude such person from serving in an impartial and independent manner. (b) Services and Facilities of Other Entities.— For purposes of this subchapter, an agency may 20

THE FEDERAL GOVERNMENT & NEGOTIATED RULEMAKING use the services and facilities of other Federal agencies and public and private agencies and instrumentalities with the consent of such agencies and instrumentalities, and with or without reimbursement to such agencies and instrumentalities, and may accept voluntary and uncompensated services without regard to the provisions of section 1342 of title 31. The Federal Mediation and Conciliation Service may provide services and facilities, with or without reimbursement, to assist agencies under this subchapter, including furnishing conveners, facilitators, and training in negotiated rulemaking. (c) Expenses of Committee Members.— Members of a negotiated rulemaking committee shall be responsible for their own expenses of participation in such committee, except that an agency may, in accordance with section 7(d) of the Federal Advisory Committee Act, pay for a member’s reasonable travel and per diem expenses, expenses to obtain technical assistance, and a reasonable rate of compensation, if— (1) such member certifies a lack of adequate financial resources to participate in the committee; and (2) the agency determines that such member’s participation in the committee is necessary to assure an adequate representation of the member’s interest. (d) Status of Member as Federal Employee.— A member’s receipt of funds under this section or section 569 shall not conclusively determine for purposes of sections 202 through 209 of title 18 whether that member is an employee of the United States Government.

5 U.S.C. § 570. JUDICIAL REVIEW Any agency action relating to establishing, assisting, or terminating a negotiated rulemaking committee under this subchapter shall not be subject to judicial review. Nothing in this section shall bar judicial review of a rule if such judicial review is otherwise provided by law. A rule which is the product of negotiated rulemaking and is subject to judicial review shall not be accorded any greater deference by a court than a rule which is the product of other rulemaking procedures.

5 U.S.C. § 570A. AUTHORIZATION OF APPROPRIATIONS There are authorized to be appropriated such sums as may be necessary to carry out the purposes of this subchapter.

14 U.S.C. § 2. PRIMARY DUTIES The Coast Guard shall enforce or assist in the enforcement of all applicable Federal laws on, under, and over the high seas and waters subject to the jurisdiction of the United States; shall engage in maritime air surveillance or interdiction to enforce or assist in the enforcement of the laws of the United States; shall administer laws and promulgate and enforce regulations for the promotion of safety of life and property on and under the high seas and waters subject to the jurisdiction of the United States covering all matters not specifically delegated by law to some other executive department; shall develop, establish, maintain, and operate, with due regard to the requirements of national defense, aids to maritime navigation, ice-breaking facilities, and rescue facilities for the promotion of safety on, under, and over the high seas and waters subject to the jurisdiction of the United States; shall, pursuant to international agreements, develop, establish, maintain, and operate icebreaking facilities on, under, and over waters other than the high seas and waters subject to the jurisdiction of the United States; shall engage in oceanographic research of the high seas and in 21

THE U.S. COAST GUARD & NEGOTIATED RULEMAKING waters subject to the jurisdiction of the United States; and shall maintain a state of readiness to function as a specialized service in the Navy in time of war, including the fulfillment of Maritime Defense Zone command responsibilities

14 U.S.C. § 93. COMMANDANT; GENERAL POWERS (a) For the purpose of executing the duties and functions of the Coast Guard the Commandant may: (1) maintain water, land, and air patrols, and ice-breaking facilities; (2) establish and prescribe the purpose of, change the location of, consolidate, discontinue, reestablish, maintain, operate, and repair Coast Guard shore establishments; (3) assign vessels, aircraft, vehicles, aids to navigation, equipment, appliances, and supplies to Coast Guard districts and shore establishments, and transfer any of the foregoing from one district or shore establishment to another; (4) conduct experiments, investigate, or cause to be investigated, plans, devices, and inventions relating to the performance of any Coast Guard function and cooperate and coordinate such activities with other Government agencies and with private agencies; (5) conduct any investigations or studies that may be of assistance to the Coast Guard in the performance of any of its powers, duties, or functions; (6) collect, publish, and distribute information concerning Coast Guard operations; (7) conduct or make available to personnel of the Coast Guard such specialized training and courses of instruction, including correspondence courses, as may be necessary or desirable for the good of the service; (8) design or cause to be designed, cause to be constructed, accept as gift, or otherwise acquire patrol boats and other small craft, equip, operate, maintain, supply, and repair such patrol boats, other small craft, aircraft, and vehicles, and subject to applicable regulations under subtitle I of title 40 and title III of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.) dispose of them; (9) acquire, accept as gift, maintain, repair, and discontinue aids to navigation, appliances, equipment, and supplies; (10) equip, operate, maintain, supply, and repair Coast Guard districts and shore establishments; (11) establish, equip, operate, and maintain shops, depots, and yards for the manufacture and construction of aids to navigation, equipment, apparatus, vessels, vehicles, and aircraft not normally or economically obtainable from private contractors, and for the maintenance and repair of any property used by the Coast Guard; (12) accept and utilize, in times of emergency in order to save life or protect property, such voluntary services as may be offered to the Coast Guard; (13) rent or lease, under such terms and conditions as are deemed advisable, for a period not exceeding five years, such real property under the control of the Coast Guard as may not be required for immediate use by the Coast Guard, the monies received from any such rental or lease, less amount of expenses incurred (exclusive of governmental personal services), to be deposited in the Treasury; (14) grant, under such terms and conditions as are deemed advisable, permits, licenses, easements, and rights-of-way over, across, in, and upon lands under the control of the Coast Guard when in the 22

THE U.S. COAST GUARD & NEGOTIATED RULEMAKING public interest and without substantially injuring the interests of the United States in the property thereby affected; (15) establish, install, abandon, re-establish, reroute, operate, maintain, repair, purchase, or lease such telephone and telegraph lines and cables, together with all facilities, apparatus, equipment, structures, appurtenances, accessories, and supplies used or useful in connection with the installation, operation, maintenance, or repair of such lines and cables, including telephones in residences leased or owned by the Government of the United States when appropriate to assure efficient response to extraordinary operational contingencies of a limited duration, and acquire such real property rights of way, easements, or attachment privileges as may be required for the installation, operation, and maintenance of such lines, cables, and equipment; (16) establish, install, abandon, reestablish, change the location of, operate, maintain, and repair radio transmitting and receiving stations; (17) provide medical and dental care for personnel entitled thereto by law or regulation, including care in private facilities; (18) accept, under terms and conditions the Commandant establishes, the service of an individual ordered to perform community service under the order of a Federal, State, or municipal court; (19) notwithstanding any other law, enter into cooperative agreements with States, local governments, non-governmental organizations, and individuals, to accept and utilize voluntary services for the maintenance and improvement of natural and historic resources on, or to benefit natural and historic research on, Coast Guard facilities, subject to the requirement that— (1) the cooperative agreements shall each provide for the parties to contribute funds or services on a matching basis to defray the costs of such programs, projects, and activities under the agreement; and (2) a person providing voluntary services under this subsection shall not be considered a Federal employee except for purposes of chapter 81 of title 5, United States Code, with respect to compensation for work-related injuries, and chapter 171 of title 28, United States Code, with respect to tort claims; (20) enter into cooperative agreements with other Government agencies and the National Academy of Sciences; (21) require that any member of the Coast Guard or Coast Guard Reserve (including a cadet or an applicant for appointment or enlistment to any of the foregoing and any member of a uniformed service who is assigned to the Coast Guard) request that all information contained in the National Driver Register pertaining to the individual, as described in section 30304 (a) of title 49, be made available to the Commandant under section 30305 (a) of title 49, may receive that information, and upon receipt, shall make the information available to the individual; (22) provide for the honorary recognition of individuals and organizations that significantly contribute to Coast Guard programs, missions, or operations, including State and local governments and commercial and nonprofit organizations, and pay for, using any appropriations or funds available to the Coast Guard, plaques, medals, trophies, badges, and similar items to acknowledge such contribution (including reasonable expenses of ceremony and presentation); (23) rent or lease, under such terms and conditions as are considered by the Secretary to be advisable, commercial vehicles to transport the next of kin of eligible retired Coast Guard military personnel to attend funeral services of the service member at a national cemetery; and (y) [1] after informing the Secretary, make such recommendations to the Congress relating to the Coast Guard as the Commandant considers appropriate. 23

THE U.S. COAST GUARD & NEGOTIATED RULEMAKING (b)

(1) Notwithstanding subsection (a)(14), a lease described in paragraph (2) of this subsection may be for a term of up to 20 years. (2) A lease referred to in paragraph (1) is a lease— (A) to the United States Coast Guard Academy Alumni Association for the construction of an Alumni Center on the grounds of the United States Coast Guard Academy; or (B) to an entity with which the Commandant has a cooperative agreement under section 4(e) of the Ports and Waterways Safety Act, and for which a term longer than 5 years is necessary to carry out the agreement

14 U.S.C. § 141. COOPERATION WITH OTHER AGENCIES, STATES, TERRITORIES, AND POLITICAL SUBDIVISIONS (a) The Coast Guard may, when so requested by proper authority, utilize its personnel and facilities (including members of the Auxiliary and facilities governed under chapter 23) to assist any Federal agency, State, Territory, possession, or political subdivision thereof, or the District of Columbia, to perform any activity for which such personnel and facilities are especially qualified. The Commandant may prescribe conditions, including reimbursement, under which personnel and facilities may be provided under this subsection. (b) The Coast Guard, with the consent of the head of the agency concerned, may avail itself of such officers and employees, advice, information, and facilities of any Federal agency, State, Territory, possession, or political subdivision thereof, or the District of Columbia as may be helpful in the performance of its duties. In connection with the utilization of personal services of employees of state or local governments, the Coast Guard may make payments for necessary traveling and per diem expenses as prescribed for Federal employees by the standardized Government travel regulations.

14 U.S.C. § 631. DELEGATION OF POWERS BY THE SECRETARY The Secretary is authorized to confer or impose upon the Commandant any of the rights, privileges, powers, or duties, in respect to the administration of the Coast Guard, vested in or imposed upon the Secretary by this title or other provisions of law.

14 U.S.C. § 632. FUNCTIONS AND POWERS VESTED IN THE COMMANDANT All powers and functions conferred upon the Coast Guard, or the Commandant, by or pursuant to this title or any other law shall, unless otherwise specifically stated, be executed by the Commandant subject to the general supervision of the Secretary. In order to execute the powers and functions vested in him, the Commandant may assign personnel of the Coast Guard to duty in the District of Columbia, elsewhere in the United States, in any territory of the United States, and in any foreign country, but such personnel shall not be assigned to duties in any foreign country without the consent of the government of that country; assign to such personnel such duties and authority as he deems necessary; and issue rules, orders, and instructions, not inconsistent with law, relating to the organization, internal administration, and personnel of the Coast Guard.

14 U.S.C. § 633. REGULATIONS 24

THE U.S. COAST GUARD & NEGOTIATED RULEMAKING In addition to the authority conferred by other provisions of this title the Secretary may promulgate such regulations and orders as he deems appropriate to carry out the provisions of this title or any other law applicable to the Coast Guard.

33 C.F.R. § 1.05-1. DELEGATION OF RULEMAKING AUTHORITY. (a) The Secretary of Homeland Security is empowered by various statutes to issue regulations regarding the functions, powers and duties of the Coast Guard. (b) The Secretary of Homeland Security has delegated much of this authority to the Commandant, U.S. Coast Guard, including authority to issue regulations regarding the functions of the Coast Guard and the authority to redelegate and authorize successive redelegations of that authority within the Coast Guard. (c) The Commandant has reserved the authority to issue any rules and regulations determined to be significant under Executive Order 12866, Regulatory Planning and Review. (d) The Commandant has redelegated to the various office chiefs at U.S. Coast Guard Headquarters, with the reservation that this authority shall not be further redelegated, the authority to develop and issue regulations necessary to implement laws, treaties, or Executive Orders associated with their assigned programs; issue amendments to existing regulations as necessary; and submit regulatory proposals for Marine Safety and Security Council consideration. (e)(1) The Commandant has redelegated to Coast Guard District Commanders, with the reservation that this authority shall not be further redelegated, the authority to issue regulations pertaining to the following: (i) Anchorage grounds and special anchorage areas. (ii) The designation of lightering zones. (iii) The operation of drawbridges. (iv) The establishment of Regulated Navigation Areas. (v) The establishment of safety and security zones. (vi) The establishment of special local regulations. (2) This delegation does not extend to those matters specified in paragraph (c) of this section or rules and regulations which have been shown to raise substantial issues or to generate controversy. (f) Except for those matters specified in paragraph (c) of this section, the Commandant has redelegated to Coast Guard Captains of the Port, with the reservation that this authority shall not be further redelegated, the authority to establish safety and security zones. (g) The Commandant has redelegated to Coast Guard District Commanders, Captains of the Port, the Assistant Commandant for Operations, and the Assistant Commandant for Marine Safety, Security and 25

THE U.S. COAST GUARD & NEGOTIATED RULEMAKING Environmental Protection, the authority to make the certification required by section 605(b) of the Regulatory Flexibility Act (Sec. 605(b), Pub. L. 96–354, 94 Stat. 1168 (5 U.S.C. 605)) for rules that they issue.

33 C.F.R. § 1.05-5 MARINE SAFETY AND SECURITY COUNCIL. (MSSC) The Marine Safety and Security Council, composed of senior Coast Guard officials, acts as policy advisor to the Commandant and is the focal point of the Coast Guard regulatory system. The Marine Safety and Security Council provides oversight, review, and guidance for all Coast Guard regulatory activity. MSSC Chairman RDML William D. Baumgartner Commandant (G-094) Room 1422C U.S. Coast Guard Washington, DC Tel. 202-372-3726

33 C.F.R. § 1.05-10 REGULATORY PROCESS OVERVIEW. (a) Most rules of local applicability are issued by District Commanders and Captains of the Port, while rules of wider applicability are issued by senior Coast Guard officials at Coast Guard Headquarters, For both significant rulemaking (defined by Executive Order 12866, Regulatory Planning and Review) and non-significant rulemaking, other than those areas delegated to District Commanders and Captains of the Port, the regulatory process begins when an office chief with program responsibilities identifies a possible need for a new regulation or for changes to an existing regulation. The need may arise due to statutory changes, or be based on internal review or public input. Early public involvement is strongly encouraged. (b) After a tentative significant regulatory approach is developed, a significant regulatory project proposal is submitted to the Marine Safety and Security Council for approval. The proposal describes the scope of the proposed regulation, alternatives considered, and potential cost and benefits, including possible environmental impacts. All significant regulatory projects require Marine Safety and Security Council approval. (c) Significant rulemaking projects must also be approved by the Commandant of the Coast Guard. (d) If the project is approved, the necessary documents are drafted, including documents to be published in theFederal Register.These may include regulatory evaluations, environmental analyses, requests for comments, announcements of public meetings, notices of proposed rulemakings, and final rules. 33 C.F.R. § 1.05-60 NEGOTIATED RULEMAKING. (a) The Coast Guard may establish a negotiated rulemaking committee under the Negotiated Rulemaking Act of 1990 and the Federal Advisory Committee Act (FACA) (5 U.S.C. App. 2) when it is in the public interest. (b) Generally, the Coast Guard will consider negotiated rulemaking when: (1) There is a need for a rule; 26

THE U.S. COAST GUARD & NEGOTIATED RULEMAKING (2) There are a limited number of representatives for identifiable parties affected by the rule; (3) There is a reasonable chance that balanced representation can be reached in the negotiated rulemaking committee and that the committee members will negotiate in good faith; (4) There is a likelihood of a committee consensus in a fixed time period; (5) The negotiated rulemaking process will not unreasonably delay the rule; (6) The Coast Guard has resources to do negotiated rulemaking; and (7) The Coast Guard can use the consensus of the committee in formulating the NPRM and final rule.

27

SELECTEES FOR CONFERENCE & NEGOTIATED RULEMAKING

FEDERAL EXECUTIVE BRANCH OFFICE OF THE PRESIDENT Counsel to the President Assistant to the President for Homeland Security & Counterterrorim Assistant to the President for Legislative Affairs Assistant to the President for Domestice Policy Domestic Policy Council

U.S. DEPARTMENT OF HOMELAND SECURITY Secretary of Homeland Security, Michael Chertoff Deputy Secretary, Michael P. Jackson DIRECTORATES: FEMA, Under Secretary, R. David Paulson POLICY, Assistant Secretary, Stewart A. Baker PREPAREDNESS, Under Secretary, George W. Foresman POLICY Executive Director, Homeland Security Advisory Council, Douglas L. Hoelscher Assistant Secretary, Office of International Affairs, Cresencio Arcos Assistant Secretary, Policy, -VACANCYAssistant Secretary, Private Sector Coordination, Alfonso Martinez-Fonts PREPAREDNESS Director, Office of State and Local Government Coordination, Chester Lunner, Acting COMPONENTS Civil Rights and Civil Liberties Officer, Daniel W. Sutherland Commandant, U.S. Coast Guard, Thad W. Allen General Counsel, Philip J. Perry Assistant Secretary, Office of Legislative and Intergovernmental Affairs, Pamela J. Turner Senior Military Adviser, Timothy S. Sullivan Chief Privacy Officer, Maureen Cooney, Acting Assistant Secretary, Transportation Security Administration, Edmund S. Hawley White House Liaison, Eric M. Leckey

U.S. DEPARTMENT OF JUSTICE; Attorney General, Alberto Gonzales Deputy Attorney General, Paul J. McNulty Inspector General, Glenn A. Fine Assistant Attorney General, Office of Legal Counsel, STEVEN BRADBURY, Acting Assistant Attorney General, Office of Legislative Affairs, WILLIAM E. MOSCHELLA Assistant Attorney General, Office of Legal Policy, RACHEL BRAND 28

SELECTEES FOR CONFERENCE & NEGOTIATED RULEMAKING Assistant Attorney General, Civil Division PETER D. KEISLER Assistant Attorney General, Civil Rights Division, WAN J. KIM Assistant Attorney General, Criminal Division, ALICE S. FISHER Assistant Attorney General, Office of Justice Programs, REGINA B. SCHOFIELD Director, Office of Public Affairs TASIA SCALINOS Director, Office of Information and Privacy DANIEL J. METCALFE Director, Office of Intergovernmental and Public Liaison, CRYSTAL JEZIERSKI Director, Executive Office for U.S. Attorneys MICHAEL A. BATTLE Director, Federal Bureau of Investigation ROBERT S. MUELLER III Director, United States Marshals Service JOHN F. CLARK Director, Bureau of Alcohol, Tobacco, Firearms, and Explosives, CARL J. TRUSCOTT Director, Community Relations Service SHAREE M. FREEMAN Director, Community Oriented Policing Services, CARL R. PEED

U.S. DEPARTMENT OF LABOR Secretary of Labor ELAINE L. CHAO Executive Secretary RUTH KNOUSE Deputy Secretary STEVEN J. LAW Chief Administrative Law Judge JOHN M. VITTONE Director, Center for Faith-Based and Community Initiatives, JEDD MEDEFIND Director, Office of Small Business, Programs JOSE A. LIRA Director, Office of the 21st Century, Workforce, KAREN CZARNECKI Director, Women’s Bureau SHINAE CHUN Assistant Secretary for Congressional and Intergovernmental Affairs, KRISTINE IVERSON Assistant Secretary for Employment and Training, EMILY STOVER DEROCCO Assistant Secretary for Employment Standards, VICTORIA A. LIPNIC Assistant Secretary for Occupational Safety and Health, EDWIN G. FOULKE, JR. Deputy Assistant Secretary JONATHAN L. SNARE Assistant Secretary for Policy VERONICA VARGAS STIDVENT Assistant Secretary for Public Affairs LISA M. KRUSKA Assistant Secretary for Veterans’ Employment and Training, CHARLES S. CICCOLELLA Deputy Under Secretary for International Labor Affairs, JAMES CARTER

U.S. DEPARTMENT DEPARTMENT OF LABOR, OSHA 200 Constitution Avenue, NW Washington, DC 20210 Maritime Advisory Committee for Occupational Safety and Health (MACOSH) Government Interests Stephen D. Hudock - National Institute for Occupational Safety and Health CAPT. Lorne Thomas – U.S. Coast Guard Charles Lemon - Washington State Department of Labor and Industry Jim Maddux - Designated Federal Official Employer Interests 29

SELECTEES FOR CONFERENCE & NEGOTIATED RULEMAKING James Thornton – Northrop Grumman Newport News Shipbuilding CAPT. Teresa Preston – Atlantic Marine/ Alabama Shipyard, Inc. Marc MacDonald – Pacific Maritime Association Jim Burgin - National Maritime Safety Association Donald Raffo - General Dynamics Stewart Adams - Naval Sea Systems Command Employee Interests Michael Flynn - Intl Association of Machinists and Aerospace Workers David Tubman, Jr. - Marine Engineers' Beneficial Association Robert Gleason - International Longshoremen's Association, AFL-CIO John Castanho - International Longshore and Warehouse Union Earnest Whelan - International Union of Operating Engineers, Local 25 T. Warren Fairley, Jr. - Int Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forger and Helpers

U.S. DEPARTMENT OF STATE Secretary of State CONDOLEEZZA RICE Deputy Secretary of State ROBERT B. ZOELLICK Assistant Secretary for Legislative Affairs JEFFREY T. BERGNER Counselor of the Department of State PHILIP ZELIKOW Director of the Office of Civil Rights (VACANCY) Director, Policy Planning io Staff STEPHEN KRASNER Inspector General HOWARD J. KRONGARD Legal Adviser JOHN B. BELLINGER III Under Secretary for Arms Control and International Security Affairs, ROBERT JOSEPH Under Secretary for Democracy and Global Affairs, PAULA J. DOBRIANSKY Assistant Secretary for Democracy, Human Rights, and Labor, BARRY F. LOWENKRON Assistant Secretary for Population, Refugees, and Migration, ELLEN SAUERBREY Assistant Secretary for Consular Affairs MAURA HARTY Assistant Secretary for Diplomatic Security and Director of the Office of Foreign Missions, RICHARD J. GRIFFIN Assistant Secretary for Information Resource Management and Chief Information Officer, JAMES VAN DERHOFF Under Secretary for Political Affairs R. NICHOLAS BURNS Assistant Secretary for Western Hemisphere Affairs, THOMAS A. SHANNON, JR. Assistant Secretary for Educational and Cultural Affairs, DINA HABIB POWELL Coordinator, International Information, Programs, ALEXANDER C. FELDMAN Permanent Representative of the United States of America to the Organization of American States, RICHARD C. HOLBROOKE

U.S. DEPARTMENT OF TRANSPORTATION Secretary of Transportation, NORMAN Y. MINETA White House Liaison LORI MCMAHON Deputy Secretary MARIA CINO 30

SELECTEES FOR CONFERENCE & NEGOTIATED RULEMAKING Under Secretary for Policy JEFFREY N. SHANE Chief Information Officer JAQUELYN PATILLO, Acting Director of Civil Rights J. MICHAEL TRUJILLO Director of Small and Disadvantaged Business Utilization, JOHN BOBO, Acting General Counsel JEFFREY ROSEN Inspector General TODD J. ZINSER, Acting Assistant Secretary for Aviation and International Affairs, MICHAEL REYNOLDS, Acting Assistant Secretary for Budget and Programs and Chief Financial Officer, PHYLLIS SCHEINBERG Assistant Secretary for Governmental Affairs, ROGER S. KARR Assistant Secretary for Transportation Policy, TYLER DUVALL

NATIONAL LABOR RELATIONS BOPARD Chairman ROBERT J. BATTISTA Executive Secretary LESTER A. HELTZER Inspector General JANE E. ALTENHOFEN Chief Administrative Law Judge ROBERT A. GIANNASI Chief, Information Technology RICHARD WESTFIELD General Counsel RONALD MEISBURG Director, Equal Employment Opportunity ROBERT J. POINDEXTER Associate General Counsel, Division of Advice BARRY J. KEARNEY Associate General Counsel, Division of Enforcement Litigation, JOHN H. FERGUSON

U.S. COAST GUARD Commandant's Corner (CG-00) Vice Commandant's Corner (CG-09) Master Chief Petty Officer of the Coast Guard (CG-00B) Chaplain of the Coast Guard (CG-00A) Chief Administrative Law Judge (CG-00J) International Affairs & Foreign Policy (CG-00I) Office of Civil Rights (CG-00H) Compliance and Liaison Division (CG-00H1) Policy and Plans Division (CG-00H2) Judge Advocate General, Rear Admiral William D. Baumgartner, (TJAG) CG-094, HQ room 1422, (202) 372-3726 Office of Maritime/International Law(CG-0941) HQ room 1416, (202) 372-3796 Office of Regulations & Administrative Law (CG-0943) HQ room 1417, (202) 372-3864 Office of General Law (CG-0944) HQ room 1410, (202) 372-3762 Office of Claims & Litigation (CG-0945) HQ room 1413, (202) 372-3740 Office of Legislation (CG-0947) HQ room 1108, (202) 372-3779 Office of Legal Policy & Program Development (CG-0948) HQ room 1100, (202) 372-3819 International Programs (G-D-IP) Assistant Commandant for Policy & Planning (CG-5) 31

SELECTEES FOR CONFERENCE & NEGOTIATED RULEMAKING Resource & Administration Staff (CG-5AR) Office of Maritime Domain Awareness Program (CG-52) Coordination & Integration Division (CG-521) Programs & Architecture Division (CG-522) Plans, Policy & Assessment Division (CG-523) Office of Strategic Analysis (CG-511) Office of Mission Analysis (CG-512) Office of Policy & Planning Integration (CG-513) U.S. Coast Guard Marine Safety and Security Council;

FEDERAL LEGISLATIVE BRANCH U.S. Senate’s Legislative Counsel (2 U.S.C. 271); U.S. House of Representatives’ Legislative Counsel (2 U.S.C. § 281); U.S. House of Representatives’ Office of the Law Revision Counsel (2 U.S.C. § 285); U.S. House Subcommittee on the Coast Guard and Maritime Transportation;

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FEDERAL ADVISORY COMMITTEE

FEDERAL ADVISORY COMMITTEE ACT 5 U.S.C. Appendix - FEDERAL ADVISORY COMMITTEE ACT § 2. Findings and Purpose (a) The Congress finds that there are numerous committees, boards, commissions, councils, and similar groups which have been established to advise officers and agencies in the executive branch of the Federal Government and that they are frequently a useful and beneficial means of furnishing expert advice, ideas, and diverse opinions to the Federal Government. (b) The Congress further finds and declares that (1) the need for many existing advisory committees has not been adequately reviewed; (2) new advisory committees should be established only when they are determined to be essential and their number should be kept to the minimum necessary; (3) advisory committees should be terminated when they are no longer carrying out the purposes for which they were established; (4) standards and uniform procedures should govern the establishment, operation, administration, and duration of advisory committees; (5) the Congress and the public should be kept informed with respect to the number, purpose, membership, activities, and cost of advisory committees; and (6) the function of advisory committees should be advisory only, and that all matters under their consideration should be determined, in accordance with law, by the official, agency, or officer involved.

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OATH OF OFFICE Citing from the U.S. Constitution, Article VI, Clause 3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

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TITLE 4, U.S. ATTORNEY’S MANUAL - COMPROMISING US ATTORNEY MANUAL (USAM) TITLE 4 CIVIL 4-3 COMPROMISING AND CLOSING USAM 4-3.100 Authority of the Attorney General The Attorney General has the inherent authority to . . . abandon the defense of any action insofar as it involves the United States of America, or any of its agencies, or any of its agents who are parties in their official capacities. See Confiscation Cases, 7 Wall. 454, 458 (1868) (action brought by an informer with expectation of financial gain); Conner v. Cornell, 32 F.2d 581, 585-6 (8th Cir.), cert. denied, 280 U.S. 583 (1929) (dismissal of suit on behalf of restricted Indian wards of the United States); Mars v. McDougal, 40 F.2d 247, 249 (10th Cir.), cert. denied, 282 U.S. 850 (1930); 22 Op. Att'y Gen. 491, 494; 38 Op. Att'y Gen. 124, 126; see United States v. Throckmorton, 98 U.S. 61, 70 (1878); United States v. Newport News Shipbuilding & Dry Dock Co., 571 F.2d 1283 (4th Cir.), cert. denied, 439 U.S. 875 (1978). This authority may be exercised at any time during the course of litigation.

The Attorney General also has the inherent authority to compromise any action insofar as it involves the United States of America, its agencies, or any of its agents who are parties in their official capacities. See Halbach v. Markham, 106 F. Supp. 475, 479-480 (D.N.J. 1952), aff'd, 207 F.2d 503 (3rd Cir. 1953), cert. denied, 347 U.S. 933 (1954); 38 Op. Att'y Gen. 124, 126. This authority is not dependent upon any express statutory provision. See 38 Op. Att'y Gen. 98, 99. To the contrary, it exists to the extent that it is not expressly limited by statute. See Swift & Co. v. United States, 276 U.S. 311, 331-2 (1928). Note the additional authority delegated to the Attorney General by the second paragraph of section 5 within Executive Order 6166. USAM TITLE 4 CIVIL 4-3 COMPROMISING AND CLOSING 4-3.140 Exceptions to the Redelegation of the Attorney General's Authority By virtue of section 1 of Directive 14-95 and notwithstanding the redelegations of authority to compromise cases, file suits, counterclaims, and cross-claims, or to take any other action necessary to protect the interests of the United States discussed above, such authority may not be exercised, and the matter must be submitted to the Assistant Attorney General for the Civil Division, when: For any reason, the proposed action, as a practical matter, will control or adversely influence the disposition of other claims totaling more than the respective amounts designated; Because a novel question of law or a question of policy is presented, or for any other reason, the proposed action should, in the opinion of the officer or employee concerned, receive the personal attention of the Assistant Attorney General; The agency or agencies involved are opposed to the proposed action (the views of an agency must be solicited with respect to any significant proposed action if it is a party, if it has asked to be consulted with respect to any such proposed action, or if such proposed action in a case would adversely affect any of its policies); The United States Attorney involved is opposed to the proposed action and requests that the decision be submitted to the Assistant Attorney General for decision, or The case is on appeal, except as determined by the Director of the Appellate Staff. 35

TITLE 4, U.S. ATTORNEY’S MANUAL - COMPROMISING See Civil Division Directive No. 14-95, 28 CFR Part 0. USAM TITLE 4 CIVIL 4-3 COMPROMISING AND CLOSING USAM 4-3.200 Bases for the Compromising or Closing of Claims Involving the United States A United States Attorney should compromise or close a claim (the term "claim" is used in its broadest sense to include, for example, a claim that arises out of a judgment entered for or against the United States) pursuant to the authority described in USAM 4-3.120 only when one or more of the following bases for such action are present: F. The United States Attorney believes that compromising or closing a claim of the United States is necessary to prevent injustice (see 38 Op. Att'y Gen. 98 (1934); 38 Op. Att'y Gen. 94 (1933)); H. The United States Attorney believes that it is less costly to compromise a claim against the United States than to undertake further legal action in defense against the claim;or I. The United States Attorney believes that a compromise of a claim against the United States is substantially more favorable than the verdict or judgment that would probably result from further litigation.

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TITLE 28, C.F.R. – ONLY ATTY GENERAL CAN COMPROMISE HERE 28 C.F.R. § 0.160 Offers That May Be Accepted by Assistant Attorneys General. 28 C.F.R. § 0.160(c) Any proposed settlement, regardless of amount or circumstances, must be referred to the Deputy Attorney General or the Associate Attorney General, as appropriate: (1) When, for any reason, the compromise of a particular claim would, as a practical matter, control or adversely influence the disposition of other claims and the compromise of all the claims taken together would exceed the authority delegated by paragraph (a) of this section; or

(2) When the Assistant Attorney General concerned is of the opinion that because of a question of law or policy presented, or because of opposition to the proposed settlement by a department or agency involved, or for any other reason, the proposed settlement should receive the personal attention of the Deputy Attorney General or the Associate Attorney General, as appropriate; (3) When the proposed settlement converts into a mandatory duty the otherwise discretionary authority of a department or agency to promulgate, revise, or rescind regulations; (4) When the proposed settlement commits a department or agency to expend funds that Congress has not appropriated and that have not been budgeted for the action in question, or commits a department or agency to seek particular appropriation or budget authorization; or (5) When the proposed settlement otherwise limits the discretion of a department or agency to make policy or managerial decisions committed to the department or agency by Congress or by the Constitution. [Order No. 1958–95, 60 FR 15674, Mar. 27, 1995] 28 C.F.R. § 0.161 Acceptance of certain offers by the Deputy Attorney General or Associate Attorney General, as appropriate. (a) In all cases in which the acceptance of a proposed offer in compromise would exceed the authority delegated by § 0.160, the Assistant Attorney General concerned shall, when he is of the opinion that the proposed offer should be accepted, transmit his recommendation to that effect to the Deputy Attorney General or the Associate Attorney General, as appropriate. (b) The Deputy Attorney General or the Associate Attorney General, as appropriate, is authorized to exercise the settlement authority of the Attorney General as to all claims asserted by or against the United States.

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Respectfully submitted, Don Hamrick 5860 Wilburn Road Wilburn, Arkansas 72179

CERTIFICATION A copy of the above was emailed to Richard Pence, Civil Chief, U.S. Attorney’s Office as Defense Counsel, Thursday, April 19, 2007 .

Don Hamrick, Plaintiff, pro se 5860 Wilburn Road Wilburn, Arkansas 72179

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