Carole Roth and I appreciated the opportunity to meet with you last week to discuss "The Administrative Practice and Regulatory Control Act of 1979", S. 1291, which has been introduced by Senator Kennedy. This is in response to your request for written comments on the bill. At the outset, I should note that these comments are those of the General Counsel's Office and do not necessarily reflect the views of the Commissioners. Many of the comments listed below have already been discussed at our July 17, 1979 meeting. As we indicated to you at that meeting, the Commission supports the concept of regulatory reform and believes that mechanisms to assure rational and systematic agency decisionmaking and to provide for more efficient management of the regulatory process are desirable. We have previously indicated our support for most of the provisions of S. 262 and S. 755. In our judgment, S. 1291 goes a long way toward achieving the goals of regulatory reform without unduly burdening regulatory agencies. In particular, at a time when regulatory reform is sometimes focused solely on the economic impact of regulations, we are encouraged by those aspects of S. 1291 which are sensitive to the benefits of health and safety regulatory efforts. Our specific remarks are as follows: 1. It is our understanding that S. 1291 is intended to supplement other regulatory reform proposals. While S. 1291 does not contain a specific regulatory analysis requirement, other bills do. Accordingly, we urge that in any bill that is ultimately adopted, management tools such as regulatory analysis and regulatory agenda not be subject to judicial review in any court. Subjecting such items to judicial review will undoubtedly spur litigation and increase the burden on the courts and the cost of government regulation. Thus, some of the very goals which regulatory reform seeks to accomplish will be compromised. Since our meeting, we have given additional thought to whether these items should be made part of the record that the court considers. However, after weighing the alternatives, we continue to believe that these items should not be made a part of the record for purposes of judicial review. Otherwise, as a practical matter, the sufficiency of a regulatory analysis will inevitably be reviewed by the courts. The line between "included in the record but not reviewable "and "subject to judicial review" is, in our view, simply too vague to protect against the delay inherent in full judicial review of the sufficiency of a regulatory analysis. This does not mean that an agency's compliance with these regulatory management tools will go unchecked or unsupervised. We note, for example, that CPSC is required under its own statute to consider and make findings concerning the effect of a rule on the utility, cost, or availability of the product. These findings are subject to judicial review in any challenge of a rule. Furthermore, our performance is subject to increasingly intensive review by Congressional committees. We believe that this system provides what safeguards are necessary. 2. We support the provisions of the bill regarding the public file of summaries of all meetings involving substantial interest matters between agency staff and outside parties. In addition, telephone conversations regarding substantial interest matters between agency staff and outside parties must be detailed in telephone summaries which are placed in a public file. All written communications received by agency staff are public documents, unless the materials are exempt from disclosure under section 552(b) of the Administrative Procedure Act (APA). The recordkeeping provisions in S. 1291 are somewhat unclear with regard to written communications. It appears that an agency must maintain in a public file a record of each written communication as well as where appropriate, the communication itself. We suggest that the language of this section be modified to state that an agency must maintain all written communications or, where material in the communication may not be disclosed, a record of the communication. This way agencies will not be required to maintain for the same document both a record and the document itself. In 3. The Commission strongly supports the funding of participation of appropriate persons in agency proceedings. fact, we have issued interim regulations concerning financial compensation of participants in informal rulemaking proceedings (see 43 FR 23560; 16 CFR Part 1050). These regulations establish criteria to identify who shall be compensated and procedures applicants for compensation must follow. 4. The Commission has previously commented (see attachment) on Title II of the bill requiring agencies to assess the anticompetitive impact of certain agency actions. We suggest that the bill itself make clear that Title II is not intended to apply to the type of actions taken by the Commission. For example, subsection (b)(2) of section 602 could be rewritten to state that the provisions shall not apply to actions taken under a law that specifically regulates health or safety. 5. Title III of the bill provides a mechanism whereby the President and Congress are required to review certain agencies according to a prescribed schedule. The Commission has expressed its support for review and analysis of the structure and operation of regulatory agencies on a number of occasions. We believe that the review procedure established by S. 1291, particularly the feature of specifying the precise timing of the reviews, is reasonable. Agencies will have ample notice of the reviews and will be prepared to participate actively with the President in insuring that the reviews are comprehensive and will result in genuine improvement of the regulatory process. In addition, we support the provision which requires the President in formulating the regulatory reform legislation and the report to consider reforms which will "enhance the ability of agencies to protect health and safety and the interests of consumers. However, we are concerned that the permanent membership of the Committee on Regulatory Evaluation may be weighted too heavily in favor of economic interests. We suggest that the heads of regulatory agencies involved in protecting the public health and safety or the environment be included as permanent representatives on the Committee. 6. Title IV of the bill reorganizes the Administrative Conference, makes the Conference an independent agency, and expands the powers and duties of the Conference. We are concerned about the scope of the procedural powers granted to the Conference. In particular, we are concerned about the provisions which authorize the Conference to issue procedural rules binding on all agencies in proceedings subject to sections 553 through 558 of the APA. In our experience, it is difficult and often undesirable to attempt to formulate uniform procedures for diverse federal agencies with different structures, functions, statutory mandates, and operating budgets. As an independent agency, we are further troubled that this broad grant of procedural power may imply some measure of authority for the Conference over substantive decisionmaking by CPSC. Matters of procedure and substance are not always neatly severable and a broad grant of procedural power may encompass substantive review. We believe that the purpose of this bill is adequately served by the provision which authorizes the Conference to report to Congress and OMB on agency failure to adhere to the provisions of the APA, FOIA, the Privacy Act, and the Government in the Sunshine Act. We suggest that broad rulemaking power for the Conference may be ill-advised. Please do not hestiate to call if we can be of further assistance. We hope these comments are helpful. Sincerely, Camber Kentual Andrew S. Krulwich Enclosure We are pleased to respond to your request for comments on S.382. It is our understanding that comment is sought on the modified version of S.382 that is now contained in Title II of the draft "Administrative Practice and Regulatory Control Act of 1979." The thrust of Title II is the requirement that agencies assess the anticompetitive impact of certain agency actions. Title II's applicability is limited to the four types of regulatory action set out in § 602 (a) (1) − (4) . The Consumer Product Safety Commission does not engage in agency action within the scope of $ 602 (a) (1), (a) (2) or (a) (4). The Commission does, however, take action, such as the issuance of descriptive standards and bans, that may have the effect of limiting the production or distribution of types and classes of consumer products and hazardous substances. Additionally, the Commission's remedial powers of recall and seizure directly interrupt product distribution. The Commission, however, takes no regulatory action to accomplish health and safety objectives by setting numerical limits on the products that may be produced or distributed, or by allocating that production or distribution. We assume S 602 (a) (3) refers to the latter form of regulatory actions and is not intended to apply to the actions traditionally taken by the Commission. We would suggest that the bill and its legislative history make this clear. Please call us if we can be of further assistance. |