ML19276E579
| ML19276E579 | |
| Person / Time | |
|---|---|
| Issue date: | 02/13/1979 |
| From: | Moe M NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Stoiber C NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| Shared Package | |
| ML19276E578 | List: |
| References | |
| REF-10CFR9.7 NUDOCS 7903200006 | |
| Download: ML19276E579 (3) | |
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UWTED STATES E,
fluCLEAR REGULATORY CO*.*'.*!SSION o
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- c WASHINGTON, O. C. 20555 ogw'+ot February 13, 1979 MEMORANDUM FOR:
Carlton Stoiber FRCM:
Marian Moe
SUBJECT:
EXPERIENCE OF E?A AND FTC '4ITH HY3 RID RU1EMAKI"G HEARIN35 f
Federal Trade Commission
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The FTC, with the passage of the Moss-Magnuson Act in 1974 (15 U.S.C.s. 5 18(6)) changed their rulemaking proceeding from an informal legislative-type hearing to a nore formal
" hybrid" hearing which includes both a fact-gathering
(" legislative") hearing before the presiding officer and an opportunity for cross-examination.
The effectiveness of the hybrid proceedings FTC uses can be better understood if looked at in light of the specific procedure which the agency utilizes.
The FTC proce' dure generally follows this format:
1.
FTC files initial Federal Register notice of rule-making with outline of general issues to be addressed and proposed " material issues of disputed fact."
'2.
Comments on initial notice are received from the public.
3 FTC promulgates second public notice which further refines the issues to Je addressed at the oral hearing.
4.
A public hearing is held uith oral presentations by all interested parties, but no cross-examination allowed.
5 After the public hearing, " material issues of disputed fact" are designated by the presiding officer.
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2 6.
Cross-examination is allo-ed only on those issues determined to be " material issues of disputed fact."
7 The question of which issues are material disputed facts can be, and is, appealed directly to the Commissioners, who may reduce or expand the number of issues u?on ahich crcss-enamination is allowed.
According to FTC staff, the procedure has not worked very effectively.
One major problem has been the reluctance of the presiding officer to limit the occasions on which cross-examination was permitted.
As a result, almost every request for cross-examination is allowed.
The presiding officers found that'more time was spent on arguments over whether something was a " material issue of disputed fact" than cross-
. examination itself would take.
The Commission has rarely attempted to employ the distinction between questions of law and questions of fact to reduce the amount of cross-examination, although the statute only requires cross-examination on disputed issues of material feet.
They have no guidelines for distin-guishing between the two and often end up with cross-examination on essentially legislative or policy questions.
Environmental Protection Agency The EPA uses a slightly different version of hybrid hearings which they call a " bifurcated proceeding."
Generally the following procedure is used:
1.
EPA issues its proposed opinion and the evidence it is based on in a public notice.
2.
Written responses ara received by the publ$ c.
3 A public hearing is held before an agency panel who questions witnesses according to questions
. submitted by both parties and by the agency staff.
4.
Direct cross-examination is permitted if the panel decides the question can be further resolved by such cross-examination.
The EPA, like the FTC, does not attempt to distinguish between.
' questions of fact and questions of law.
They have only had one request for cross-examination (in four hearings) and it was granted, so this distinction hasn't be'en a major problem in screening out extensive cross-examination.
The EPA staff is generally enthusiastic about their experience using the " bifurcated proceedings" and believe that it has been an efficient way to resolve the issues where it has been applied.
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3 Several explanations for the contrasting experience of the two agencies have been suggasted.
As a new agency the EPA began its first hearings using the bifurcated process, and its participants never took part in any c:her type of rule-making proceeding.
The agency has also used a panel consist -
ing of several permanent i. embers and a r: ating panel of experts so that detailei technical issues are T.cre ther: ugh _3 probed durin6 the oral hearing.
The EPA also establishes a more complete initial record 2nd is es entially ready to issue a decision before the request for direct cross-examination by the parties is made.
The nature of the issues explored and the impact on the industries regulated is also seen as contributing to the smo =r operation of the EPA procedure.
When the FTC prc
.ad rules to regulate Private Vocaticnal Schcols, the inductry was presented with a major econcnic threat and con-tested the agency on every detail of the proposed regulations.
By contrast, the EPA's hearings on the level of octane in gasoline were not as comprehensively disputed.
Both agencies emphasized that an active and impartial hearing panel is absolutely essential to making the hybrid process work.
Intervenor funding allows the ini-ial record to be more clear and complete, thus leaving fewer disputed issues to be resolved by cross-examination.
A full and open record by the agency initially also helps to clarify and narrow the issues.
It should be noted that both EPA and FTC used the hybrid hearings for issues which had previously been resolved through an informal rulemaking procedure.
The Administrative Conference is also conducting a major
' study of the FTC's hybrid rulemaking process and will report its findings to Congress by this coming summer.
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