agencies to decrease rulemaking and increase adjudication; and (5) have an adverse impact on entire regulatory programs. 77/ The delay that would be caused in the regulatory process by the legislative veto should be obvious. S. 104 would require generally that a particular agency rule could not become effective for sixty days while the Congress decides whether to disapprove it. And this sixty-day period does not include any day on which either House is not in session because of a sine die adjournment or an adjournment of more than three days to a day certain. As the Senate Committee put it, when "only a handful of these regulations would even be the subject of a resolution of disapproval, it makes little sense to delay implementing each and every rule." 78/ During the substantial period of Congressional review of an agency rule, there would be great uncertainty in the regulated community and intense lobbying by special interests. In this regard, we are concerned that parties will take their case to the Congress rather than to the agency, thus diluting the value of the record before the agency. 79/ Further, we believe that the threat of legislative veto of a rule might encourage agencies, in effect, to "legislate" through case-by-case adjudications, which would not be subject to the veto. This would be an unfavorable result, 77/ Id., at 117. 78/ Id., at 119. 79/ Id. An excellent example of these problems occurred in 1976 however, because agencies should hold rulemaking proceedings and encourage public participation whenever determining an agency position of general applicability, rather than threatening to bring selective enforcement actions that result in only limited public awareness of an agency position and in no public participation. For There is also the chance that the Congress might veto one in a series of interrelated rules, thereby destroying an entire regulatory program. example, the Commission has recently proposed a comprehensive package of rules on the conduct of tender offers. 80/ If the package of rules were adopted by the Commission, but one of these rules were vetoed by the Congress, such action might upset the interrelationship among these rules and the careful balance they establish between the bidder and subject company. Not only is a legislative veto deficient in these respects, but it also appears to be unnecessary. There are several better methods, currently available to the Congress, by which it can monitor agency action. In extreme cases, it can pass a statute to reverse a particular agency rule, or it can even abolish the agency. And, Congress can impress its desires on agencies by its day-to-day appropriation, authorization, and oversight functions. The Securities Acts Amendments of 1975 contained several provisions assuring continued oversight of this agency's operations by the appropriate substantive Congressional oversight committee. For example, the Commission, which had already been required to report annually to the Congress, was 80/ Securities Exchange Act Release No. 15,548 (February 5, 1979). presented with a list of additional matters as to which details were to be furnished to the Congress. See, e.g., Sections 11A(c)(4), 11A(e), 12(m) and 23 of the Securities Exchange Act, as adopted by P. L. 94-29. Moreover, in order to ensure an annual review of the Commission's operations, each year the Commission transmits its operative budget and justification not only to the relevant appropriations committee, but also to its oversight committees. In our view, to the extent greater Congressional supervision of agency action is desirable, these approaches are vastly superior to the legislative veto provision contained in this legislation. "Although the legislative veto In short, we believe that the legislative veto power would create more problems than it would solve. We agree with the Senate Committee on Government Affairs when it concluded: may be appropriate in limited situations, the Congress should reject any across-the-board use of the legislative veto for regulatory agency rules. Congress should also refrain from continually adding a legislative veto provision to regulatory agency statutes." 81/ 81/ Study on Federal Regulation, supra note 3, at 122. The Administrative Conference of the United States has also urged the Congress not to enact broadly applicable legislation that would provide routinely for Congressional review and possible veto of agency rulemaking. Legislative Veto of Administrative Regulations, 42 Fed. Reg. 54,251 (1977). Additional Prepared Statements 41 Pryer Lane Larchmont, New York 10538 June 14, 1979 The Honorable Edward M. Kennedy and The Honorable John C. Culver Dear Senators Kennedy and Culver: This is in response to your letter of May 17, 1979 requesting testimony for the record of the hearings on regulatory reform on the following question: "Some observers have argued that a critical problem I agree completely, but think that reform addressed only to conflicting federal agency policies would not get to the root of the problem. This is so because the policies of different federal regulatory agencies often conflict because of the differing Congressional mandates under which they operate. Each agency focuses on its own enabling statute and legislative history; its own rules, procedures, and precedents; court decisions in cases it has brought; and on what it perceives as its popular mandate at particular times. It is, therefore, not surprising that an agency tends to try to carry out its own perceived obligations, regardless of whether its actions conflict with those of other agencies. It should be the responsibility of Congress and of the Executive branch to design the mandates of different federal agencies in ways that will permit them to operate in complementary rather than conflicting modes. It should, accordingly, be the responsibility of Congress, perhaps at the initiative of the Executive, to review the regulatory responsibilities of each federal agency to determine how its mandate fits with, or runs contradictory to, those of other agencies. review should pinpoint direct statutory conflicts, as well as conflicts that arise from specialized interpretations of existing agency functions. This I do not have the know-how to suggest the mechanisms for carrying out the review or translating review findings into regulatory reforms, but suggest that it would be important to provide for inputs from individual federal agencies, the White House, the staffs of Congressional committees, as well as from those regulated and the public. It should, however, be understood that all conflicts cannot be eliminated. It would, therefore, be necessary for those engaged in the review to identify separately conflicts that appear capable of resolution as distinct from conflicts indigenous to lawmaking as a human process. This means, in turn, that when conflicts among regulatory aims and directives cannot be avoided by revision of legislative mandates or by interagency consultation, a Congressionally 48-823 0 - 79 30 |