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and Congressional scrutiny will likely induce the agencies to comply as closely as possible with the deadlines.

WRITTEN QUESTIONS SUBMITTED BY SENATOR LEVIN

Question 1. What is your response to those who argue that without some form of judicial review, the regulatory analysis requirement will be merely hortatory and without substantive or procedural effect?

With regard to judicial review, what would be your reaction to a limited form of judicial review, such as in Senator Bentsen's bill, S. 54, which provides for judicial review of the regulatory analysis as part of judicial review of the final rule, "but only to determine whether such regulation was promulgated with deliberate or capricious disregard for the provisions of the bill?"

Answer. The Administration has no objection to judicial review of regulatory analyses as a part of the overall record in a rulemaking proceeding. We believe that current requirements for judicial review already encompass this. The exclusion from judicial review of regulatory analyses per se eliminates challenges to the adequacy or regulatory analyses by comparison to potentially rigid and abstract standards of what comprises an adequate analysis. Review of regulatory analyses in the context of the overall record will have both substantive and procedural impact by assuring that no agency acts in an arbitrary and capricious manner.

Question 2. Do you think it's appropriate to charge the public for copies of the regulatory analysis and review of existing regulations if a major objective of the proposed legislation is to increase public participation in the rulemaking process? Answer. The Administration has no intention of charging exorbitant fees for those documents, but it is consistent with the tenets of fiscally sound government to ask corporations, associations, organizations, and individuals to help defray the costs of reproducing copies of documents such as regulatory analyses that they have requested. This is similar to the procedure frequently followed under the Freedom of Information Act, in which there is often a charge for xeroxing requested materials. In view of the importance of encouraging widespread and meaningful public participation, however, we believe that it would be appropriate to provide copies of regulatory analyses and reviews at reduced or no charge for individuals or groups that indicate they are financially unable to purchase one at the going rate.

Question 3. Some have noted that the regulatory analyses will only be valuable if it's enforced. Assuming limited or no judicial review, what specific suggestions do you have to improve the oversight and monitoring provisions of the bills?

Answer. First, as indicated by the answer to the first question, we believe that the level of judicial review afforded to regulatory analyses as part of the overall rulemaking record will provide an important measure of oversight. Second, the Regulatory Analysis Review Group now provides an important monitoring role over the quality of agency analyses. Third, the Regulatory Council was created at President Carter's direction to improve the coordination and management of the regulatory system. Fourth, existing law already provides a general oversight provision for OMB. As part of the budget process, OMB is directed to evaluate the organization and management of the executive branch, including the independent regulatory agencies, with a view to efficient and economical service. Agencies are required to furnish OMB such information as it requests, to enable OMB to carry out this oversight responsibility.

In addition, the Administration bill, S. 755, provides some specific monitoring provisions: OMB would receive copies of regulatory analyses (section 602(d)3)) and management guidelines (section 623(e)). OMB would monitor agency schedules to review regulatory requirements and determine whether necessary to extend such schedules beyond the ten-year limit (section 641(d)).

Question 4. What response do you have to the suggestion that the President be given more directive power or control over the activities of the independent regulatory agencies?

Answer. The Administration does not believe that it is necessary to grant the President additional power to direct or control agency activities and decisions. We do believe, however, that it is important that the President monitor agency compli ance with the rulemaking process requirements of the law.

Question 5. What is your response to those in the public interest community who've criticized S. 755 because among other reasons they believe it over-emphasizes cost considerations and cuts back too much on cross-examination and discovery? Answer. We do not think that S. 755 gives too much emphasis to cost considerations. Rather, it is precisely because regulatory goals are important in our view, that they should not be undermined by inefficient or wasteful approaches. This

legislation is designed to move regulatory agencies to find the approaches that avoid such problems.

S. 755 is also designed to eliminate only unnecessary cross-examination. This should not only save resources for the public interest community, (not to mention the rest of the private sector and the government) but will enable the regulatory agencies to focus more energy on the real issues that confront them.

S. 755, rather than reducing needed discovery, should in many ways enhance it. Section 202(d)(i), for example, amends the Administrative Procedure Act to require that “[E]ach moving party [shall] submit in written form, at the time the proceeding is initiated, all the facts and arguments upon which that party proposes to rely that are known at such time to that party.” Section_203 amends current law to permit administrative law judges to hold conferences for the simplification of the issues, and to ask such questions or conduct such cross-examination as they believe are appropriate. All of these changes should facilitate the ability of all parties to discover needed information.

Question 6. What would be the Administration's position on whether or not a provision should be added to the bill requiring agencies to respond to a petition for rulemaking within a set period of time, for example, 60 days? Or explain why they can't respond within 60 days, etc?

Answer. In our view, there is no way to establish an appropriate time period to apply across the entire Federal government. Even within a single agency, the nature of petitions varies to such an extent that a fixed deadline would not be workable. A requirement that agencies explain why they did not answer by a particular date, on the other hand, would generate a lot of paper without necessarily forcing needed section. Undue delay can now be appealed to the courts. More routine delay would better be handled through oversight review of particular agencies both by the Executive Branch and by the Congress.

REGULATORY REFORM LEGISLATION

TUESDAY, APRIL 24, 1979

U.S. SENATE,

COMMITTEE ON GOVERNMENTAL AFFAIRS,

Washington, D.C.

The committee met at 10:01 a.m., pursuant to call, in room 3302, Dirksen Senate Office Building, Hon. Abraham Ribicoff (chairman of the committee) presiding.

Present: Senators Ribicoff, Levin, Pryor, Javits, and Cohen.
Chairman RIBICOFF. The committee will be in order.

This is our third day of hearings on regulatory reform. I am so pleased to have my distinguished colleague and one of the most knowledgeable men in the Senate, Senator Bentsen, with us today. As chairman of the Joint Economic Committee, Senator Bentsen is very qualified to address the issues concerning Federal regulation. I want you to know, Senator, how much I appreciate your support of S. 262. I value you as a cosponsor and am very anxious to have your testimony. You may proceed, Senator, as you will.

TESTIMONY OF HON. LLOYD BENTSEN, U.S. SENATOR FROM

THE STATE OF TEXAS

Senator BENTSEN. Thank you very much, Mr. Chairman, for your generous comments. I am delighted to be here. I welcome your leadership in this field which is such an important one, talking about how to reduce the cost of Government regulations and to reform the regulatory process. That is really an important issue for the 96th Congress and it deserves the kind of leadership that you and your committee have provided.

Before turning to the issues and to the recommendations, I want to emphasize at the very beginning of my statement that I know that neither your committee nor I are talking about turning back the clock. We are not talking about doing away with the objectives of regulations. We are talking about the most effective way of accomplishing those goals for our society.

I come from a city that has had its full share of problems when it comes to pollution, coming from Houston, Tex. We have had a ship channel down there, one of the few bodies of water in the country that deserves an octane rating. But we have made some very substantial headway in cleaning it up. That is because of the Clean Water Act. Then we have done a lot under the Clean Air Act. Chairman RIBICOFF. You know, this is a very important point. I recall about 3 months ago going to the University of Pittsburgh on a forum they were holding on the problem of regulatory reform. I pointed out that long before there were any Clean Air Acts, Pitts

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burgh had undertaken to clean up Pittsburgh, which was a dirty, deteriorating city.

I think one of the great success stories is to see what downtown Pittsburgh is today after they cleaned up all the smoke and soot. It now is fantastically expanding and has beautiful, commercial, residential and civic buildings which have added so greatly to the value and the life of Pittsburgh. So the point you make is very important and often overlooked.

Senator BENTSEN. Thank you very much, Mr. Chairman.

Coupled with that, we, understanding that the rapid growth of regulation, particularly in the last 10 years, and the growth of unnecessary regulation, conflicting regulation, and duplicating regulation in particular have added substantially to the cost of inflation. The growth of such regulatory costs just must be brought under control as a part of a comprehensive anti-inflationary program.

Mr. Chairman, I was given just yesterday an example of some of the problems we are running into on regulations, and the attention given to some of our priorities. I would like to read a letter. We are talking about energy problems in this country and trying to develop energy substitution. Here is a letter written to a person who is trying to drill a well out in Wyoming. This was dated March 20 of this year.

Dear Mr. Banco: This is in response to your request for a variance regarding the sage grouse strutting, nesting complex stipulations attached to the above-mentioned lease and wellsite. At this time available data suggests that noise from around-theclock drilling operations tend to suppress sage grouse strutting activities. Combined with the fact that the proposed lease and wellsite is located within the nesting habitat of two strutting grouse, we feel the variance should not be granted in order to protect this resource. Since there is a lack of research data on this problem, noise affecting the sage grouse strutters, the Bureau is implementing a research study to determine these effects. However, because of our planning system and budget requirements we don't anticipate starting the fieldwork for at least three years. After the study has been completed the data may show that variances of this type may be granted.

That is one of the problems we are running into in coordinating things that have really worthwhile objectives, trying to prioritize what we are trying to accomplish.

Chairman RIBICOFF. I am just curious, Senator Bentsen, since you are familiar with the drilling operations for oil and gas, why would there be 3 years necessary to reach a conclusion or make a study on an issue such as that?

Senator BENTSEN. It may be a just cause for denying the lease application. But I don't understand the 3-year delay in making that kind of a determination.

But over the past decade we have seen an explosion in Government regulations. Back in 1955 we had approximately 10,000 pages of Government regulations in the Federal Register. Now, in 1978, we have over 60,000 pages in the Federal Register. I heard President Carter tell each Cabinet member that they should read each new regulation that came out of their department. That was part of their responsibility. I had Madame Kreps, the Secretary of Commerce, before my committee, and asked her if she had read all the regulations that came out of the Department of Commerce last year. She said: "Senator, of course, I haven't. There is no way I could have done it."

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