Reconditioning the Administrative Process: Congress Weighs "Regulatory Reform" Legislation

One area of agreement among environmentalists, their business counterparts, and governmental regulators is that none will admit satisfaction with the current state of the federal regulatory process. For years the business sector has lamented both the cost of participating in the process as well as the cost of complying with the restrictions and requirements it produces. To this chorus has recently been added the complaints of the public interest sector which, while it has very little sympathy for allegations of excessive compliance costs, has been forced to admit that the federal bureaucracy is steadily losing ground in its struggle to stay abreast of its burgeoning statutory responsibilities.

These complaints, particularly those of the business community, have struck a responsive chord in a White House committed to exploring every available means of battling the chronic inflation which has besieged the national economy. In March 1978, President Carter issued Executive Order No. 12044, entitled "Improving Government Regulations,"¹ which requires all agencies to, among other things, perform "regulatory analyses" of "significant regulations" (those having an effect on the economy of $100 million or more) before they are promulgated. Such analyses are to focus principally on the economic impact of the rule, as well as the merit in alternatives which are economically less burdensome. Rules already in existence must also be examined in an analogous fashion. At roughly the same time the order was released, certain members of the President's Council of Economic Advisors and the Council on Wage and Price Stability began to intervene actively in ongoing rule-making proceedings in a largely successful attempt to relax forthcoming regulations in the environmental and health and safety areas on the ground that they would have entailed excessive compliance costs.

The genesis of congressional efforts to reevaluate the regulatory process was the enactment of a Senate resolution² in 1975 ordering that a comprehensive review of the federal administrative machinery be prepared. Over a two-year period ending last winter, the Senate Committee on Governmental Affairs released a series of reports on the nature and current health of the federal regulatory apparatus. The completed study³ was a thorough and excellent analysis of many aspects of the bureaucracy which offered dozens of specific suggestions for change, ranging from amending the Administrative Procedure Act (APA)⁴ to improving the caliber of agency personnel.

On the crest of the momentum generated by completion of the study and the recent crescendo of calls for regulatory reform, Senator Ribicoff (chairman of the Governmental Affairs Committee) introduced legislation (S. 262)⁵ addressing the problem in January 1979. The Ribicoff bill blends most of the salient features of the 1978 Executive Order with the bulk of the recommendations presented by his committee's study. Several months ago, President Carter submitted legislation (S. 755)⁶ which is structurally identical to S. 262 and very similar in most other respects. The two bills appear likely to form the locus of congressional activity on this subject and to serve as markup vehicles from which final proposals will be forged. Scores of other "regulatory reform" measures have surfaced on Capitol Hill, but most of these remain on the periphery of the important legislative activity. Notable among these is Senator Kennedy's bill (S. 1291),⁷ which is somewhat less ambitious than the Administration and Ribicoff proposals.

Regulatory Analysis

The lion's share of both S. 262 and S. 755 is devoted to provisions requiring detailed agency review of proposed and existing rules. Painstaking analysis of all "major" rules would be required under both measures.⁸ Major rules could only be proposed in accompaniment with a preliminary "regulatory analysis." This analysis, which bears strong resemblance to the analysis required under Executive Order No. 12044, must examine (1) the need for the rule, (2) alternative means of achieving the same objectives, and (3) a preliminary cost-benefit analysis for the rule.

When the rule is promulgated in final form,⁹ a "final regulatory analysis" must be issued. This document must contain a more refined cost-benefit analysis, explain why the rule finally selected is preferable to any alternative which appeared less expensive to implement,¹⁰ and respond to comments received from the public on the proposed version of the rule. Before the rule is promulgated, final regulatory analyses are to be submitted for review to the Congressional Budget Office (S. 262) or the Office of [9 ELR 10101] Management and Budget (S. 755) but are explicitly immunized from judicial review.¹¹

The putative benefits of the regulatory analysis concept include improved perception of the long-range economic impacts of new regulations. Traditionally, such impacts have been deemed irrelevant or unimportant by an agency faced with a rigid congressional mandate to issue rules according to specific guidelines. Yet when enacting such mandates, Congress stands in an admittedly poor position from which to evaluate the likely consequences of its actions. While under the proposed legislation congressional enactments would continue to precede the regulatory analyses, such studies would provide lawmakers with useful feedback and theoretically help the agencies to pinpoint the wisest of the regulatory alternatives available.

Beneath the advantages ascribed to regulatory analysis, however, lurk subtle dangers. Cost-benefit analysis of environmental and health and safety regulations is now a topic of hot debate and is implicitly at issue before the United States Supreme Court.¹² While as a decision-making tool it may well serve to illuminate the path towards making regulation more cost-effective, it also has the inevitable tendency of blinding decision makers to the intangible and hence unquantifiable benefits of a given rule, which are the reasons for must environmental and health and safety controls. Typically, the application of cost-benefit techniques to environmental or health and safety rules leads to results which are not only crude but which tend to undervalue the intangible benefits of the rule. Such information is therefore of far greater use to the rule's opponents than its proponents.

For these reasons, it would be unwise for the courts to consider a rule's cost-benefit ratio when undertaking substantive review of its merits. The drafters of S. 262 and S. 755 acknowledged this by making regulatory analyses expressly immune from legal challenge. Commentators from the public interest community have suggested, however, that the legislation indirectly provides other avenues through which the analyses can be raised in litigation.¹³ Since Congress is certainly aware of the limits of cost-benefit techniques in this context, it should take steps to ensure that agency officials accord full weight to all of the benefits and purposes of regulations without fear of attack from the courts or elsewhere for failure to adopt the least expensive alternative.

Regulatory Agendas

Under both bills, all agencies would be required to produce periodically an agenda which specifies its regulatory priorities and rules to be issued during the upcoming year. It must also review the extent to which the agency's regulatory activities during the preceding year coincided with the regulatory priorities established for that period.¹⁴ The regulatory agenda proposal is another concept with roots in Executive Order No. 12044, and it seems a useful tool given the traditional lack of broad-based internal review of regulatory functions. The Administration's bill is again subject to criticism, however, for overreliance on cost-benefit techniques: in § 621(a)(2) of S. 755 agencies are directed to estimate the costs of future rules far in advance of the formal proposal stage. This is another example of a measure which unduly heightens regulators' sensitivity to the economic impacts of regulations in subtle derogation of statutory policies and mandates.

Deadlines and Performance Reports

Both of the bills are centrally concerned with the problem of delay in the regulatory process. Such delay, and the development of techniques to avoid it, were the exclusive focus of the fourth segment of the Senate Study,¹⁵ and many provisions in the instant legislation mirror its recommendations in this regard. The bills would require that whenever an agency proposes a rule it also set a deadline by which the regulation must be finally promulgated.¹⁶ For major rule makings, a series of incremental deadlines would be established for discrete segments of the proceeding. There is no lack of incentive for meeting deadlines, however, despite the fact that nonattainment of a deadline would not be judicially reviewable¹⁷ and would require simply that new deadlines be reestablished.

Proceedings in which deadlines have been exceeded or which are otherwise delayed must be brought to light in yet another periodic report: in addition to the obligation to prepare regulatory agendas (which include discussion of past priorities and whether they were achieved) each agency would also have to prepare annual "regulatory performance" reports.¹⁸ Such reports would include information on the number of proceedings instituted during the previous year, the number brought to conclusion, the instances in which deadlines were violated, and an explanation for such violations. In addition, S. 262 requires that the agency identify those of its proceedings which were subject to the greatest delays and outline the steps taken to expedite them. Recommendations for changes in existing statutory authority which would streamline the process are encouraged.¹⁹ In sum, the bills require embarrassing documentation of the agency's lack of diligence or resources but could lead to hard thinking about and creative suggestions for remedies.

Periodic Review of Rules

As if the foregoing self-reporting and analysis measures were not enough, additional requirements rival them in impact. Each agency must also submit to Congress [9 ELR 10102] exhaustive analyses of existing sets of regulations, particularly those which have been in effect for a number of years. Under the Ribicoff bill, the agency must propose and receive comments on a five-year plan which shall designate one set of rules for scrutiny in each subsequent year.²⁰ Under the Administration's bill, the agency must prepare a ten-year plan which sets out a program for studying every rule administered by that agency with an annual economic impact of $100 million or more.²¹

Each bill provides explicit criteria for selecting rules for review as well as for assessing the merits of the rules. Evaluations are to focus largely on the cost of the rule, both to the regulator and those regulated, and on its effectiveness in achieving its purposes. The overall intent is to provide a means for determining whether the rule is obsolete, unjustified, ineffective, or otherwise appropriate for withdrawal.

In general, this approach is commendable in that it supplies a much needed mechanism for ongoing reviews to determine whether specific regulations have outlived their effectiveness. In this respect it shares the advantage of the "sunset" concept for clearing out bureaucratic deadwood. It is not without drawbacks, however. Cost-justification is an amorphous and manipulable concept which, as applied through the proposed periodic review, could serve to set up regulations which are unpopular or not clearly cost-beneficial for public execution. The legislation would be improved if it also provided for the strengthening and fine-tuning of rules which have failed to achieve their objectives but continue to address a genuine social need.

Amendments to the Administrative Procedure Act

Through enactment of the Administrative Procedure Act in 1946 Congress imposed on the agencies a bifurcated procedural apparatus for use in administrative hearings. In essence, the Act provides that for "legislative" rules of broad applicability the agency need conduct only an informal or "notice and comment" proceeding, in which interested parties are generally limited to submitting written statements. However, where Congress has directed that the rule be developed "on the record," an adjudicatory or "trial-type" proceeding must be held or where a rule will have specific application, such as the issuance of a permit or license. Formal proceedings are unlike informal proceedings in most respects, and may exhibit much of the procedural complexity of federal litigation, including extensive discovery, oral testimony, and cross-examination.

The awkwardness of this two-pronged scheme, particularly when it leads to the use of trial-type proceeding for producing rules which are heavily laden with policy questions, has widely been blamed for undue delay in the regulatory process.²² Since the early 1970s, the agencies, the courts, and even Congress have shown a "strong and pervasive trend"²³ away from strictly formal or informal proceedings and toward the use of "hybrid" proceedings, the procedural complexion of which is tailored to the circumstances and the issues at hand.²⁴ Generally, these hybrid hearings feature reduced opportunity for oral argument, discovery, and cross-examination as compared to formal proceedings. S. 262 and S. 755 propose changes in the APA structure which are consistent with this evolutionary trend.

Informal Rule Making

Notice and comment rule-making as established under § 553 of the APA would be structurally unaffected by either bill. Thus, what has been termed "one of the greatest inventions of modern government"²⁵ will continue for the forseeable future. Significant nonstructural changes have been proposed, however. First, S. 755 would expand the notice period for proposed rules from the current 30 days to 60 days.²⁶ This is a laudable move which would add only insignificantly to the total time required to issue regulations. S. 755 includes the further salutary requirement that agencies publish responses to comments from the public when issuing rules in final form, but this adds little to existing judicial demands.²⁷

Expendited Proceedings

As in the case of informal rule making, S. 262 and S. 755 would preserve the basic outline of the formal proceeding. [9 ELR 10103] They would work a significant change, however, by creating a hybrid proceeding labeled the "expedited procedure"²⁸ or "general hearing process"²⁹ (hereafter "expedited proceeding"). The new proceeding would be required in virtually every case in which the APA currently calls for the use of formal proceedings, including licensing and permitting, rule making, and rate making,³⁰ and it could be used for any other proceeding as deemed appropriate by the agency. Formal procedures would be reserved for those few proceedings which fall outside this wide net but must be used in any proceeding to suspend or revoke a permit. An agency's choice of procedures may be judicially overturned only upon a showing of a clear abuse of discretion that substantially affected the rights of the parties.³¹

One of the principal objectives of the legislation is to restrict the availability of cross-examination. It would do this simply and directly: cross-examination would be eliminated from expedited proceedings. Then, at the conclusion of the proceeding, the presiding officer must designate, with specificity and in writing, all disputed issues of material fact as to which cross-examination is necessary to assure their adequate resolution and upon which the agency's decision will likely depend in large measure. As to these issues, the presiding officer must either permit cross-examination³² or conduct a formal hearing.³³

It is indisputable that cross-examination has at times been employed by both public interest and business representatives to delay proceedings needlessly. When the subject matter involves questions of policy, the proceeding can be transformed into an extended disputative and philosophical debate between an agency official and counsel for the opponent of a given rule. Despite its drawbacks, however, cross-examination can serve a vital function in revealing the bias, speculation, and possible misrepresentation contained in the testimony and submissions of parties with much at stake in the outcome of a hearing. Even on issues that are not strictly factual, it is often very useful to probe the motives and values held by officials charged with regulating public behavior. Moreover, cross-examination is commonly the principal if not exclusive tool available to public interest or indigent parties, as the costs of obtaining expert testimony on technically complex questions have made it a luxury beyond their reach. The proposed reforms would therefore operate to render public interest participation more passive and less effective.

While the bills do provide for cross-examination on certain issues, the applicable criteria are couched in extreme terms³⁴ which promise to narrow the instances in which it would be permissible to a mere handful. Further, it is doubtful that the opportunity to question a witness weeks or months after the close of direct testimony in the expedited hearing would adequately illuminate the issues for the tribunal and might for the same reasons result in a denial of due process rights.³⁵

Other Features

At the outset of the expedited hearing, the proponent of the rule, which may include the agency, must submit in writing all the facts and arguments of which it is aware and on which it intends to rely.³⁶ This mechanism amounts to a limited but automatic discovery device which permits rebuttal of the proponent's position at an early stage. Additional discovery may be ordered at the discretion of the presiding officer. Oral argument would be available as of right. This represents a change in the rules that would eliminate the existing though rarely used authority of administrative law judges (ALJs) to receive all submissions in writing.³⁷

Because the expedited hearing is not a full evidentiary hearing, the presiding officer would not have authority to rule on the admissibility of evidence or testimony.The officer would, however, have the right to participate directly in the hearing by questioning participants and cross-examining witnesses freely. In addition, the agency would be empowered to designate an employee as an assistant to the presiding officer who would also have authority to conduct questioning.³⁸ Not suprisingly, the bills confer upon the presiding officer broad discretion to speed the course of proceedings, including the power to certify specific questions to the agency for interlocutory review.

Ex Parte Contacts

Ex parte contacts are defined in the APA as "oral or written communication[s] not on the public record with respect to which reasonable public notice to all parties is not given."³⁹ Whereas such communications with the decision maker are expressly forbidden in the context of hearings held on the record,⁴⁰ the Act does not on its face extend the same prohibition to informal proceedings. Nevertheless, the courts, notably the Court of Appeals for the District of Columbia Circuit, have done so [9 ELR 10104] through the common law.⁴¹ This judicial ex parte contact rule is grounded on both a desire to maintain the integrity of the administrative process⁴² and the need to assure fairness to the parties⁴³; it applies equally to hearings held on and off the record.⁴⁴

Although the law in this area appears to be fairly well settled, in the past two years complaints have been raised frequently and publicly that officials in the Executive Office of the President have impermissibly contacted agency heads to argue off the record for relaxation of forthcoming environmental and health and safety regulations. In at least one instance, such charges have ripened into litigation, which resulted in an unconvincing victory for the White House.⁴⁵

Neither the Administration nor the Ribicoff legislation would restrict ex parte contacts during expedited hearings. Indeed, among the express purposes of the former bill is to assure that the President and agency heads play an active role in regulatory management.⁴⁶ On the other hand, Senator Kennedy's bill, adopts a position more in accordance with current law by requiring that in all proceedings a copy or transcript of any communication with decision makers be placed on the record.⁴⁷ This provision is modeled on a measure in the Clean Air Act⁴⁸ and seems likely to encourage candor and objectivity. If ex parte restrictions are not placed in any final legislation, it is conceivable that the courts would read Congress' rejection of such a measure to override the judge-made restrictions which now apply. Neither congressional action nor inaction, however, would ease the ex parte rules to the extent they are constitutionally based.⁴⁹ A realistic scenario is that the current APA prohibition against ex parte contacts in proceedings required to be held on the record would remain operative with respect to expedited proceedings as well.

Judicial Review of Rules

S. 755 provides that judicial review of rule making shall be available only in the circuit courts of appeals unless some other statute confers jurisdiction upon the district courts.⁵⁰ The rationale behind this provision is that since most district court reviews of rules are appealed anyway, direct review by the appellate courts would sidestep this delay-prone and expensive stage without materially influencing the outcome in most cases. Direct appellate review of rule making is now expressly provided by a host of statutes and is generally thought a beneficial device.⁵¹

A possible source of difficulty with the latest proposals concerns the proper standard of judicial review of rules issued on the basis of the expedited procedure. The APA currently requires that rules which must by statute be developed "on the record" be judicially reviewed under the "substantial evidence," test.⁵² Rules which are developed on the basis of informal proceedings, on the other hand, are to be measured against the "arbitrary and capricious" standard.⁵³ Although the two standards are not entirely distinct,⁵⁴ the former is generally seen as the stricter, in that it allows less latitude for conclusions which are not supported in the record.⁵⁵

While S. 262 and S. 755 would channel virtually all "on the record" rule makings into the expedited format, they would not affect the required application of the "substantial evidence" standard of review. The use of the "substantial evidence" test to review less than trial-type records, however, has given the courts some difficulty⁵⁶ and in at least one case had led to the invalidation of rules which appeared to be supported to the extent intended by Congress.⁵⁷ A preferable approach, and one which should be adopted by any new legislation, is to make clear that "legislative" rules which are developed on the basis of informal or expedited proceedings should be held to the "arbitrary and capricious" standard, while those rules or those components of rules which are the subject of trial-type proceedings should continue to be tested against the "substantial evidence"test. This approach has been recommended by scholars of the process⁵⁸ and has been applied by courts in a few cases [9 ELR 10105] with great success.⁵⁹ The alternative is to force the courts of appeals to remand the record to the agency or the district courts for additional fact finding, or, more likely, to accord the agencies a greater degree of deference on review.

Funding of Public Participation in Rule Making

Whether federal funding should be available as of right to compensate the costs of participation by indigents in agency proceedings has proven a highly charged issue.⁶⁰ Some agencies have recognized the value in the public funding mechanism and have distributed financial assistance liberally,⁶¹ while others, notably the Nuclear Regulatory Commission, have resisted in the concept mightily.⁶²

Each of the two bills would require that such funding be made available by all agencies⁶³; S. 755 authorizes appropriations of $20 million annually, while S. 262 is silent as to amount. Each would give disbursement responsibility to the Administrative Conference of the United States (ACUS). This would require a dramatic reorientation in the mission of this scholarly, nonpoliticized body as well as a significant increase in its size. The criteria governing the distribution of funds are traditional: (1) the usefulness of public participation in the particular proceeding; (2) the effectiveness of the person seeking funding as an advocate of an important public interest; and (3) the person's need for funding and financial stake, if any, in the outcome of the proceeding.

The vesting of fund distribution authority in ACUS appears to be a sound idea. It would obviate current criticisms of some agencies for allegedly funding only representatives of views supportive of their own and prevents the possibility that agencies which are opposed to the practice might administer the funds in a niggardly manner. Although ACUS may now be in less than an ideal position from which to administer such funds, it could undoubtedly become adept at the task in short order.

Administrative Law Judges

The Administration and Ribicoff bills would reform significantly the role of administrative law judges in the regulatory hierarchy. The most significant change would be the abolition of life tenure. Instead, ALJs would be appointed for a term of seven⁶⁴ or ten⁶⁵ years, and their conduct would be subject to continuing review. Prior to the expiration of the term of office, the ALJ's qualifications and performance would be evaluated by a performance review board of which more than half the members would be sitting ALJs. The receipt of a satisfactory rating from the review board initially and from the chairman of ACUS ultimately would be a precondition to eligibility for reappointment and salary bonuses. If an ALJ's performance is found unacceptable, the chairman may file a complaint with the Merit Systems Protection Board of the Office of Personnel Management, which must hold a hearing on the matter. If that board concurs with the chairman, the ALJ would be subject to removal from office, suspension from duty, or reduction in pay, and may under no circumstances be reappointed. Individuals who are not reappointed are entitled to a job in the same agency at a comparable salary. In this respect the legislation would appear to create a sinecure that seems unnecessary to attract competent ALJ candidates.

Each bill would require that ALJs be selected by the agency from pools of qualified candidates compiled by either ACUS⁶⁶ or the Office of Personnel Management.⁶⁷ A very significant point of divergence between the bills is that S. 262 would apply only to ALJs who are hired subsequent to the date of enactment, thus entrenching the existing corps for life.

Conclusion

The welter of "regulatory reform" legislation introduced in the early months of the 96th Congress, coinciding as it did with a trend towards a relaxation in environmental controls in response to inflationary pressures and energy shortages, understandably sent a chill through the public interest community. But recent developments in Congress have shown that the leading contenders for passage are the Ribicoff and Administration bills which, while not inconsistent with that theme,would generally do little more than codify requirements which either are currently in effect under Executive Order No. 12044 or had been proposed previously by neutral experts in administrative procedure. While public interest advocates would no doubt continue to prefer the status quo, they are prepared to accept the basic thrust of the proposals, with the exception of some objectionable details.

The business community, on the other hand, stands to make clear gains from enactment of either of the bills. [9 ELR 10106] The process of obtaining a federal license, such as a national pollution discharge elimination system permit and perhaps even a nuclear power plant license, would be made less burdensome and time consuming. Furthermore, licenses could be revoked or suspended only after a lengthy formal proceeding. Of equal significance are the proposals for regulatory analysis and periodic post hoc regulatory review. If nothing else, such proceedings would provide industry with a forum in which to attempt to pillory any objectionable set of regulations to which it is subject.

Perhaps the most compelling observation to be made is that in all probability some form of regulatory reform will be enacted in this Congress. The concept of streamlining the regulatory process has yet to attract real opposition and continues to draw strong support. There is a real risk, however, that any bill which finally emerges from Congress will contain features that will prove regrettable in the long run, such as a repeal of the judge-made prohibition against ex parte contacts or a requirement for cost-benefit analysis of environmental regulations. If such pitfalls can be avoided, the new legislation will likely cut much of the fat from existing administrative procedures and inject needed thoroughness into the process of promulgating and administering agency rules.

1. Executive Order No. 12044, 43 Fed. Reg. 12661 (Mar. 24, 1978).

2. S. Res. 71, 94th Cong., 1st Sess. (1975).

3. SENATE COMMITTEE ON GOVERNMENTAL OPERATIONS, STUDY ON FEDERAL REGULATION, 95th Cong., 1st and 2d Sess. (Comm. Print 1977-1978) (hereinafter Senate Study).

4. 5 U.S.C. §§ 500-576, 701-706, ELR STAT. & REG 41001.

5. 96th Cong., 1st Sess. (1979).

6. 96th Cong., 1st Sess. (1979).

7. 96th Cong., 1st Sess. (1979).

8. S. 262, § 601(3); S. 755, § 601(4) (definition covers rules which are likely to have an effect on the economy of $100 million or more; latter also applies to rules which are expected to cause a "substantial change in costs" for any particular industry).

9. Section 602 of S. 262 would require that a minimum of 60 days be allowed for submission of public comments before final issuance.

10. S. 755 only (§ 603(c)(4)). This provision is troublesome in that it appears to create a presumption in all cases favoring adoption of the alternative regulatory approach causing the least adverse economic impact.

11. S. 262, § 607; S. 755, § 603(a).

12. Industrial Union Dept. AFL-CIO v. American Petroleum Institute, No. 78-911; Marshall v. American Petroleum Institute, No. 78-1036. See also Comment, Assessing Regulatory Costs and Benefits: Fifth Circuit Vacates OSHA Benzene Standard, 8 ELR 10250 (1978).

13. Each bill provides that the regulatory analysis may be incorporated into other documents, such as environmental impact statements (S. 262 at § 602(d)(1)(B); S. 755 at § 604(2)), which may provide a back door to judicial review. Nevertheless, congressional intent to immunize these analyses from scrutiny is apparent from the legislation and would probably be given effect.

14. S. 262 at § 622 (agendas must be prepared on at least an annual basis); S. 755 (agendas must be prepared at least semi-annually).

15. See Senate Study, supra, note 3.

16. S. 262, § 623; S. 755, § 622.

17. See S. 755, § 603; S. 262, § 607.

18. S. 262, § 624; S. 755, §§ 621(a)(3), 622(b).

19. S. 262, § 624(b)(6).

20. S. 262, § 641.

21. S. 755, § 641. This more extensive program may involve an extreme administrative burden. See § 641(c)(3) of the bill, which allows an extension of the 10-year limit if an agency must review more than 100 sets of regulations.

22. See Administrative Conference of the United States Recommendation 72-5. See generally Senate Study, supra, note 3, Vol. IV.

23. K. DAVIS, ADMINISTRATIVE LAW TREATISE § 6.8 at 475 (2d ed. 1978).

24. 1970 marked Congress' first experiment with a statute requiring the use of more than notice and comment but less than adjudicatory procedures. Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. Since then similar statutory provisions have proliferated. See e.g., Toxic Substances Control Act § 6(c)(3)(A), 15 U.S.C. § 2605(c)(3)(A), ELR STAT. & REG. 41342; Clean Air Act § 307(d), 42 U.S.C. § 7607(d), ELR STAT. & REG. 42258.

For examples of an agency's unilateral adoption of hybrid hearing procedures, see Natural Resources Defense Council v. Nuclear Regulatory Commission, 539 F.2d 824, 6 ELR 20513 (2d Cir. 1976) (parties to proceeding permitted to submit questions to be asked of witnesses by the presiding officer); accord, International Harvester Co. v. Ruckelshaus, 478 F.2d 615, 3 ELR 20133 (D.C. Cir. 1973).

While the courts have also at times demanded that the agencies substitute hybrid procedures for notice and comment, Natural Resources Defense Council v. Nuclear Regulatory Commission (Vermont Yankee), 547 F.2d 633, 6 ELR 20615 (D.C. Cir. 1976); Mobil Oil Corp. v. Federal Power Comm'n, 483 F.2d 1238 (D.C. Cir. 1973), all notion of demanting from the agencies more procedural thoroughness than is required under the APA were quieted by the Supreme Court in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 8 ELR 20288 (1978), reversing Vermont Yankee, supra. See Comment, Vermont Yankee: Supreme Court Sets New Limits on Judicial Review of Agency Rule Making, 8 ELR 10103 (1978).

25. K. DAVIS, ADMINISTRATIVE LAW OF THE SEVENTIES § 6.15 (1970 Supp.).

26. Section 201(a).

27. See Automotive Parts & Accessories v. Boyd, 407 F.2d 330, 338 (D.C. Cir. 1968) (statement of basis and purpose must show how agency reacted to public comments); but cf. Kennecott Copper Corp. v. Environmental Protection Agency, 462 F.2d 846, 849-50, 2 ELR 20116, 20118-119 (D.C. Cir. 1972) (desirability of complete responses to comments must be balanced against need for expeditious administrative action).

28. S. 755, § 202(d).

29. S. 262, § 202(e).

30. S. 755, § 202(d)(1), unlike S. 262, mentions rate making explicitly.

31. S. 262, § 202(e); s. 755, § 202(d).

32. S. 755, § 202(d).

33. S. 262, § 202(e).

34. For example, under § 202(e) of S. 262 the areas in which cross-examination would be permitted are limited, inter alia, to "genuine and substantial dispute[s] of fact … which can only be resolved with sufficient accuracy by the introduction of reliable evidence in a formal hearing…." (Emphasis added.)

35. If the standards proposed in S. 262 and S. 755 governing the availability of cross-examination were found by the court to be "unfair" to the participants, some relaxing of those standards would be appropriate. See K. DAVIS, ADMINISTRATIVE LAW TREATISE § 6.19 at 538: "[D]ue process could require trial procedure in rulemaking on some issues of fact in some circumstances." See also International Harvester Co. v. Environmental Protection Agency, 478 F.2d 615, 631, 3 ELR 20133, 20138 (D.C. Cir. 1973).

36. S. 262, § 202(a)(2); S. 755, § 202(d)(1).

37. Administrative Procedure Act, 5 U.S.C. § 556(d), ELR STAT. & REG. 41003.

38. S. 755, § 202(d)(1). S. 262, in a bold experiment, would permit the assistant to question the parties to the proceeding. Section 202(e).

39. APA, 5 U.S.C. § 551(14), ELR STAT. & REG. 41002.

40. APA, 5 U.S.C. § 557(d), ELR STAT. & REG. 41004.

41. See, e.g. Home Box Office, Inc. v. Federal Communications Commission, 567 F.2d 9, 54 (D.C. Cir. 1977); but see Action for Children's Television v. Federal Communications Commission, 564 F.2d 458 (D.C. Cir. 1977) (ex parte contacts in informal rule making vitigate agency decision only if shown to have "materially influenced" ultimate decision). See also Comment, Ex Parte Contacts in Informal Rulemaking: Home Box Office v. FCC and Action for Children's Television v. FCC, 65 CALIF. L. REV. 1315 (1977).

42. Home Box Office, supra note 41, at 54.

43. United States Lines, Inc. v. Federal Maritime Commission, 584 F.2d 519, 539-41 (D.C. Cir. 1978) (fairness requirement inherent in due process); Sangamon Valley Television Corp. v. United States, 269 F.2d 221, 224 (D.C. Cir. 1959).

44. United States Line, Inc. v. FMC, 584 F.2d 519 (D.C. Cir. 1978) (adjudication); Environmental Defense Fund, Inc. v. Blum, 458 F. Supp. 650, 8 ELR 20748 (D.D.C. 1978) (rule making).

45. In Natural Resources Defense Council v. Schultze, __ F. Supp. __, 9 ELR 20124 (D.D.C. 1979), the court found that it lacked jurisdiction to entertain plaintiffs' request for an injunction against off-the-record communications between presidential advisors and Department of the Interior officials promulgating stripmining regulations, on the ground of the existence of a presumption against judicial interference in pending rule-making proceedings.

46. Section 2(b)(5).

47. S. 1291, § 106(a), 96th Cong., 1st Sess. (1979).

48. Clean Air Act § 307(d)(4)(B)(i), 42 U.S.C. § 7607(d)(4)(B)(i), ELR STAT. & REG. 42258.

49. See United States Lines, Inc. v. FMC, 584 F.2d 519 (D.C. Cir. 1978).

50. Section 206.

51. See K. DAVIS, ADMINISTRATIVE LAW OF THE SEVENTIES § 23.03-1 at 538 (1977).

52. 5 U.S.C. § 706(2)(E), ELR STAT. & REG. 41005.

53. 5 U.S.C. § 706(2)(A), ELR. STAT. & REG. 41005.

54. See Associated Industries of New York State, Inc. v. United States Department of Labor, 487 F.2d 342, 349-51 (2d Cir. 1973); International Brotherhood of Electrical Workers v. National Labor Relations Board, 448 F.2d 1127, 1142 (D.C. Cir. 1971).

55. Wright, The Courts and the Rulemaking Process: The Limits of Judicial Review, 59 CORNELL L. REV. 375, 391 (1974).

56. Mobil Oil Corp. v. Federal Power Commission, 483 F.2d 1238, 1260 (D.C. Cir. 1973) (the substantial evidence test is wholly inapplicable in informal proceedings).

57. American Petroleum Institute v. Occupational Safety and Health Administration, 581 F.2d 493, 8 ELR 20790 (5th Cir. 1978). See Comment, Assessing Regulatory Costs and Benefits: Fifth Circuit Vacates OSHA Benzene Standard, 8 ELR 20250, 20251-20253 (1978).

58. K. DAVIS, ADMINISTRATIVE LAW OF THE SEVENTIES, § 29.01-4 at 664 (197l), citing Administrative Conference of the United States Recommendation 74-4.

59. See Industrial Union Dep't AFL-CIO v. Hodgson, 499 F.2d 467, 4 ELR 20415 (D.C. Cir. 1974); Associated Industries v. United States Dep't of Labor, 487 F.2d 342 (2d Cir. 1973).

60. See generally Comment, Funding Public Participation in Administrative Proceedings: District Court Finds Implicit Agency Authority to Award Costs, 8 ELR 10242 (1978); Comment, NOAA Finds Implicit Authority to Assist Intervenors Depite Second Circuit's Reversal of Greene County, 7 ELR 10210 (1977).

61. Leaders among agencies furnishing assistance to indigent intervenors include the National Highway Traffic Safety Administration, the Consumer Product Safety Commission, the Federal Trade Commission, the Food and Drug Administration, and the National Oceanic and Atmospheric Administration.

62. Notwithstanding a General Accounting Office opinion to the effect that the Nuclear Regulatory Commission is fully authorized to extend such assistance, the Commission has refused to do so. See COMPTROLLER GENERAL, IN RE COSTS OF INTERVENTION, NUCLEAR REGULATORY COMMISSION, NO. B-92288 (Feb. 19, 1976); NUCLEAR REGULATORY COMMISSION, FINANCIAL ASSISTANCE TO PARTICIPANTS IN COMMISSION PROCEEDINGS — STATEMENT OF CONSIDERATIONS TERMINATING RULEMAKING, (Nov. 12, 1976); Comment, NRC Declines to Fund Indigent Participants in Agency Proceedings, 7 ELR 10010 (1977).

63. S. 262, § 593(5); S. 755, § 301.

64. S. 755, § 802(b)(5).

65. S. 262, § 208(d).

66. S 755, § 802.

67. S. 262, § 208(b). Unlike S. 262, S. 755 deletes the current hiring preference for armed service veterans and calls for recruitment from "all groups of qualified persons," § 802. Neither bill, however, takes affirmative steps to require the hiring of women and minorities.