To put the matter somewhat differently, there is no provision in Title III for representation of producers whose ability to undertake alternative long-range risks is the necessary base for maintaining and strengthening our domestic and world position. It is not enough for the Committee on Regulatory Evaluation to represent those who know what they want; it is essential for it to represent those who are capable of producing what is required to meet conflicting wants in settings where there are limits on resources and on time. Second, it should be an explicit part of the mandate of the Committee on Regulatory Reform, to recognize that national macro-economic policies and programs have an impact on both regulated and nonregulated enterprises. An uncertain and fluctuating business environment combined with high rates of inflation, slow or negative growth in productivity, strong uncertainty about energy, and lagging rates of capital formation distort the intended effects of regulation and, in turn, require new regulation. This circular relationship between macro-economic policy and regulation should be taken into account in the recommendations that are a part of the agency review process. Third, it would give thrust and direction to the evaluation process if the Committee on Regulatory Reform were required to begin each agency review by identifying major areas of conflict or overlap between the regulations of the agency under review and those of other agencies. Such identifications might well be made public so that there could be open debate on the issues presented. Fourth, under the mandate of S.1291, the President is required to consider reform programs that will increase competition and achieve the statutory goals of individual agencies by less restrictive or nonregulatory means. But this will make it necessary for those considering changes in the regulatory processes of an individual agency to make assumptions about correlative changes in the processes of other agencies. The reverberations resulting from this echo effect will have a tendency to turn what might otherwise be an orderly straight line agency-by-agency review process into a more complex "if this, then what..." game mechanisms are provided for damping down the echo. unless I would like to thank you for the opportunity to comment for the record on the High Noon provisions of S.1291 and hope that this statement can be consolidated with my earlier letter of June 14, 1979. Sincerely, b. 15 Boch Betty Bock BB/fz Cc: Ms. Patti Saris I am belatedly responding to your (and Steve Breyer's) inquiries S. 1291 As I read Title I, it would modify the informal rule making section of the Administrative Procedure Act, by narrowing exemptions from the notice-and-comments procedure, altering existing minimum procedural requirements and establish additional requirements for "significant" rules. Also, a new section would authorize the Administrative Conference to provide financial assistance to participants in agency proceedings. My reaction to these provisions of Title I is generally favorable, with some reservations (hereinafter discussed) in the case of public financial assistance. I approve the elimination of the present exemption from notice-and- The overall "significant rule" approach, requiring advance notice, encouraging techniques to stimulate responses, information regarding alternative approaches and the explanations accompanying the final rule, appear to me to be well drafted and well considered. I note the requirement of new Section 553 (d) requiring each agency to maintain a file and like the provision that the file need not constitute the exclusive basis for judicial review. Also, I think the requirement to place in the file a record of any communication (including a description of oral communications) is constructive. My offhand thought is that this is a good idea generally and need not be limited to significant rules. Concerning the matter of financing public participation, I have mixed feelings. This will undoubtedly lead to more participation, some (or perhaps most) of which would not otherwise occur, but it may well lead to long drawn out adversary proceedings and consequently untimely or unwieldy results. On the other hand, it is conceivable that a properly administered program could lead to more responsible and effective agency action. At least I have heard many individuals for whom I have respect express their opinions that such financing is needed and can be very useful. I would leave the handling with each agency and not place the responsibility on the Administrative Conference. Also, I question the feasibility of a recoupment program. I suppose this is intended to have a retarding effect on irresponsibility but I doubt that it will work favorably. I would proceed cautiously but I wouldn't hold the threat of recoupment over a grantee's head or try to harass him or her afterwards. S. 755 and S. 262 Title II of both bills revises provisions of current law covering the conduct of formal proceedings (rule making or adjudication) which call for a determination on the record after opportunity for a hearing. The language is not the same but both bills have a provision for a more expeditious procedure for categories involving policy (formal rule making and initial licensing) and to a lesser extent for factual disputes. S. 262 includes broader required use than does S. 755. The procedure may be used on a discretionary basis for categories not involved in required use. There are two steps the first step involves the presiding officer receiving written submissions and an opportunity for oral arguments. If the presiding officer finds there is a genuine and substantial dispute of fact then the second step is taken which allows cross-examination and other fact finding techniques. Apparently, the thrust of the new procedure is to avoid oral testimony and cross-examination whenever possible and thereby save time and expense in reaching a final determination. A fairly administered test of the new procedure by the agencies and competent presiding officers may well demonstrate its effectiveness certainly in policy determinations. Even in situations involving substantial factual disputes, the first step could (as can a pre-trial in regular litigation) expedite handling of the second step. Caution must be exercised to avoid trying everything twice (as is too often the case in court cases involving factual disputes once or more on discovery and again in trial). Hopefully, the agencies and all concerned can use the required procedure to achieve the desired result. My reaction is favorable and that it is worth a try. I appreciate this opportunity to present the Commonwealth's views on Sincerely, Thomas P. O'Neill THOMAS P. O'NEILL, III TPO:11c Enclosures |