of agency priorities and plans for action. While we support the independent budget and legislative submission provision of S. 252, we urge the Committee to consider expanding it to include a small group of other agencies, such as the EPA, OSHA, FDA, and NHTSA, which have critical regulatory responsibilities for protecting health, safety and the environment. We believe that the rationale for promoting more open consideration of agency determinations about important regulatory issues applies with equal, if not greater, force to those agencies as it does to the independent regulatory commissions. ENHANCING EFFECTIVENESS OF An open and independent agency decision-making process is essential to any reform of the present administrative system. Yet reform efforts should also focus upon the need to make agency regulation and enforcement, particularly in the health, safety and environmental fields, more effective, vigorous and expeditious. The Three Mile Island incident provides yet another sobering reminder of the consequences of regulatory ineffectiveness when human health is at stake. That incident highlights the need for greater and speedier agency enforcement powers, particularly in emergency situations. It also points up the need to provide agencies with enhanced capabilities, such as stronger and more readily-enforceable subpoena powers, to accumulate necessary technical and factual information. While we cannot address all these important and troubling questions in this brief testimony we feel certain that any attempt to reform the administrative process without addressing them would overlook a growing public concern about regulatory failure. 9 The fundamental problem of the need for vigorous and effective regulation would also be overlooked, we submit, if the current preoccupation with the putative costs and burdens of regulation were to continue to distort the debate over regulatory reform. It is too easy, and extremely dangerous, to overreact to the demands that agencies be required to consider potential costs as the controlling factor in deciding which rules to adopt. We urge the Committee to exercise extreme care in drafting any legislation which would exalt "cost/benefits analysis," however described or disguised, as a tool for regulatory decision-making. We are sure the Committee is fully aware of the risks of such a narrow analysis, which would fail to take into account non-quantifiable factors such as health, safety and the quality of the environment. If the Congress concludes that agencies have not been sufficiently imaginative in exploring alternative types of regulation, it should ensure that any new legislation focuses on that particular problem. For example, consideration should be given to increasing technical staff or, as suggested above, increasing funds for public participation to ensure that all relevant views are submitted, if the Congress believes that a particular agency consistently undervalues any relevant factor, including economics, attention should be directed to particular substantive statutes. It is simply inappropriate to attempt to alter, in one APA amendment, the analytical capabilities of a diverse set of agencies, each with different statutory duties, and decision-making structures. Further, As we noted at the outset, we are concerned about what We appreciate the opportunity to present our views to the process continues. [Whereupon, at 12:30 p.m., the committee recessed, to reconvene subject to the call of the Chair.] REGULATORY REFORM LEGISLATION WEDNESDAY, MAY 16, 1979 U.S. SENATE, COMMITTEE ON GOVERNMENTAL AFFAIRS, Washington, D.C. The committee met at 10 a.m., in room 3302, Dirksen Senate Office Building, Hon. Abraham A. Ribicoff presiding. Present: Senator Ribicoff. Senator RIBICOFF. We welcome both of you, Judge Friendly, Mr. Ginsburg, two very experienced gentlemen in this field. As we resume our hearings, I am delighted, on behalf of the committee, to receive your testimony, Judge Friendly and Mr. Ginsburg. Judge Friendly, I have always admired you, for you are one of the most distinguished jurists and scholars in administrative law. Your involvement in administrative law spans several decades. You have written extensively and your opinions have had a substantial influence on our committee's regulatory reform study. Mr. Ginsburg is an old and distinguished friend with a great career in the past, present and the future. He has a vast range of experience both in the government and the private sector. Mr. Ginsburg and Judge Friendly serve as cochairmen of the Procedure Committee of the ABA's commission on law and economy and we have drawn heavily on the work of the commission both in our study and the legislation we have before us. I look forward to having your testimony. Judge Friendly, will you please proceed first? TESTIMONY OF JUDGE HENRY J. FRIENDLY, U.S. COURT OF APPEALS, SECOND CIRCUIT; AND DAVID GINSBURG, ESQ., OF THE LAW FIRM GINSBURG, FELDMAN & BRESS, WASHINGTON, D.C. Judge FRIENDLY. Thank you, Senator, and thank you for the kind remarks except for the one about the many decades. However, we have something in common on that. Senator RIBICOFF. I wouldn't worry about that. [Laughter.] I consider that with many decades just gives a little more experience and I think we both have our vigor and our minds which are still functioning. I think I will put Dave in that class, too. [Laughter.] Judge FRIENDLY. We are all contemporaries. Mr. GINSBURG. We are contemporaries, happily. Judge FRIENDLY. I will say in our joint behalf as we have in our written statements that we have benefited greatly from the work of your committee and the work that your excellent staff has done. (1097) 50-941 0 - 80 - 69 I think it is rather remarkable that when we began we didn't know about each other's work and, to some extent when we arrived at our conclusions, initial conclusions, and there is so much similarity between them. As appears in the written statement that I have filed, I am here with Mr. Ginsburg as cochairmen of the Committee on Procedure of the ABA Commission on Law and the Economy and our specific recommendations are Nos. 6 to 11 and have already been placed in the record by our vice chairman, Mr. Richard Smith, at a hearing on March 20. Knowing that you and your staff have had an opportunity to review the written statement that I have submitted, I do not think much would be gained by going through it since it is largely concerned with differences between our approach and those taken in S. 242 and S. 755 and although those are of some importance, they really go to points of detail rather than principle. As to matters that perhaps do not fall in that category, I would like to call specific attention to the full paragraph on page 9 of my statement. Senator RIBICOFF. I think both statements will go into the record as if read in full. So that gives either one of you a chance to pick or choose any special paragraphs as you go along, but the entire statement will be printed in the record as if read. [The prepared statements of Mr. Friendly and of Mr. Ginsburg follow:] |