ML19257C415
| ML19257C415 | |
| Person / Time | |
|---|---|
| Issue date: | 12/03/1979 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Gilinsky V, Hendrie J, Kennedy R NRC COMMISSION (OCM) |
| Shared Package | |
| ML19257C410 | List: |
| References | |
| REF-10CFR9.7 NUDOCS 8001290084 | |
| Download: ML19257C415 (35) | |
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December 3, 1979 MEMCRANDUM FOR:
Chairman Hendrie Commissioner Gilinsky Ccccissioner Kennedy Ccamissioner Srafford Ccamissioner Ahearne FROM:
@ Leonard Bickwit, Jr.
General Counsel
SUBJECT:
PENDING REGULATORY REFORM LEGISLATION Recently the Congress has resumed consideration of proposals to reform the Federal regulatory process.
Hearings are tentatively scheduled in the Ecuse (Judiciary Subccamittee en Administrative Law and Government Relations) December 3 and 5, 1979. At this time, the. cost important proposals are Senator Ribicoff's bill (S.262), the Administration's bill (S.755), and Senator Kennedy's bill (S.1291).
These bills are analyzed below; the Ribicoff and Administration proposals are compared in an attached paper prepared by the Office of the General Counsel of the Federal Trade Commission.
The likelihood that the Congress will enact conprehensive regulatory reform legislation in the foreseeable future is difficult to assess.
The Spring 1979 strength of the proponents of comprehensive reform -- Senators Ribicoff, Kennedy and others -- was considerably diminished by the succesgjof Senator Bumpers' more far-reaching amendment in the Senate -
which knowledgeable observers 1/
Senator Bumpers offered an amendment to the Federal Courts Improvements Act of 1979 which, as approved by the Senate, provides that whenever the validity of an agency rule or regulation is called into question in any Court, the Court shall not treat the rule or regulation as presumptively valid but rather shall uphold irs validity only if it "is established by a preponderance of the evidence shown." 125 Cong. Record.12145 (Daily ed.,
September 7, 1979). While the full impact of the Bumpers amendment if finally enacted is not known, the immediate effect would be to change the agency-court relationship by giving the Courts a full and final substantive voice as to the merits of a particular agency rulemaking decision.
Currently, Courts in theery are limited in their review of the substance of agency rules and regulations by the so-called "arbitary and capricious" standard of judicial review.
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2 viewed as evidence of a deep, anti-regulation mood in the Senate that could carry over to, and jeopardize the integrity of, other reform proposals.
Nonetheless, comprehensive-reform proponents decided to proceed in part under a belief that their proposals represent the best defense to more extensive reforms, but we have no indication of their strategy should their proposals also fall victim to Bumpers-type amendments.
Each an eventuality coul-d force them to work for no bill.
The Ccemission has not yet formally taken a collegial position on any of the pending proposals for comprehensive regulatory reform.
The renewed Congressional int gest in the subject provides an opportunity for the Commission to develop and submit its views to the Congress.
In developing your views, it would be useful to consider whether you wish to comment on (1) each of the principal issues raised by the bills, or,(2) only those issues and provisions which could reasonably be expected to affect NRC's acti"ities.
Recalling that the bills generally apply to all Federal regulatory agencies, we believe the Commission's comments will have the greatest impact if they are directed to a limited number of issues and provisions of particular interest to NRC.
The chief policy issues raised by the comprehensive bills are as follows:
(1)
Should administrative agencies prepare for each major proposed rule a regulatory analysis which (a) states the need for, and objectives of, the proposed rule, (b) describes alternative approaches to the rule's objectives; and (c). projects the economic and health / safety impacts of the proposed rule and the al'ternative approaches?
Should such a regulatory analysis be subject to judicial review for sufficiency as,for example, in the case of NEPA environmental impact statements?
(2)
Should agencies develop and publish a periodic report which' describes rules that the agency intends to propose or adopt in the succeeding year, or which more generally sets forth regulatory priorities and goals as well as the steps that the agency intends to take to satisfy the priorities and goals?
(3)
Should an agency set deadlines for completion of final agency action at the outset of each rulemaking and adjudicatory proceeding?
(4)
Should each agency establish a single office which would have primary responsibility for planning and managing the agency's regulatory activities?
18Jh3,153
3 (5)
Should an agency periodically review each of its major rules already in effect for the purpose of assessing the costs and benefits of, and alternatives to, the rule?
(6)
Should an agency be required -- not just permitted -- to use a hybrid hearing format for all initial licensing proceedings, rather than formal adjudicatory procedures?
(7)
Should requirements respecting agency separation of functions be liberalized for expedited adjudicatory hearings.
(8)
Should the power of an agency to issue and enforce subpoenas be extended?
(9)
Should an agency's right to review the decision of an employee review board (e.g.,
the Appeal Eoard) be limited to statutorily specified grounds for review?
(10) Should Administrative Law Judges (ALJ's) be appointed for a term of years, and should their reappointment be dependent on an affirmative finding of qualification by the Administrative Conference?
~
(11) Should Federal funding be authorized for public participation expenses?
Should the agency or the Administrative Conference (or some other entity) administer such a funding program?
(12) Should the role and functions of the Administrative Conference be expanded tc include authority to issue either advisory guidelines or binding rules respecting Federal procedural and information statutes, with authority to monitor the efficacy and efficiency of agency procedures?
(13) Should an agency, for each informal rulemaking involving a major rule, adopt hybrid rulemaking procedures to expand public participation?
After publication Of the notice of proposed rulemaking respecting a major rula - should cach official of the agency who has decisionmaking responsibilites record each oral or written communication received from outside the agency relating to the merits of the proposed rule?
(14) Should the President, with the assistance of a Government-wide Committee on Regulatory Evaluation, review the effectiveness, and continued need for, each of the principal regulatory agencies including (in 1986) the Nuclear Regulatory Commission? 1'
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This paper does not discuss regulatory reform issues that are not addressed by the bills such as legislative veto of administrative regulations.
I8428 154 M
4 Discussion Each of the principal issues outlined above is discussed in this portion of the paper with a description of how the issue is treated by the pending bills.
An outline of suggested Commission comments can be found in the conclusion of the paper.
(1)
Regulatorv Analvsis. Both the Ribicoff (S.262) and Administration (S.755) bills require agency publication of a preliminary or initial regulatory analysis for each preposal of a najor rule, and a final regulatory analysis for each final major rule.
The Kennedy bill does not contain such a requirement.
The bills prescribe the contents of each analysis in varying terms, but do not differ materially in approach. Basically, the analysis is to identify the need for and objectives of the rule, describe alternatives and analyze the economic, health and safety, and non-economic impacts of the rules and alternatives.
However, the extent of each agency's authority under existing law to consider economic and noneconomic factors would not be affected.
The provision would not be expected to result in the need for major new commitments of NRC staff resources.
Each bill seems to intend the regulatory analysis to be a decision aid or tool, rather than a decision docunent having independent significance.
Neither bill permits judicial review of the regulatory analysis or the agency decision not to publish one.
It is probable that a court could and would consider such an analysis in reviewing an agency rule, but the sufficiency of the regulatory analysis should not be in question any more than the sufficiency of other documentary matter considered by the agency.
Provisions in the Kennedy bill would make this expl'icit.
In the place of judicial review, the Ribicoff bill (S.262) substitutes periodic legislative review of selected agency actions and regulatory analyses by the Congressional Budget Office. However, the validity of agency action is not directly contingent on the outcome of this review.
S.755 has no counterpart provision, but does require agency submission of all analyses to OMB, thus creating an avenue for executive review.
If Congress enacts a regulatory analysis requirement, it will probably include a mechanism for external review and control.
There is pressure from groups that believe much administrative regulation is not economically justified to provide for judicial review of the regulatory analysis.
This debate is less significant for NRC, since judicial review of EIS sufficiency will continue in any event.
The experience of judicial review of EIS's provides a persuasive argument in opposition to such review "or reculatory analyses because it has had the effect of lengtheni., mi formalizing the document.
This outcome has in turn influenced, and th a view of many diminished, the value of an EIS as an adpinistr.tive decision making aid.
In order to realize the full value or regulatory analysis as a technique to assist agency decision making, review and control by Congress or the Executive is more desirable than judicial review.
i81k8 155
5 A legislative requirement of regulatory analyses for agency rulemakings is a step toward institutionalizing cost-benefit analysis in agency decision making when economic factors are relevant under an agency's authorizing statutes.
The requirement is not entirely novel because the NRC staff already prepares value.-impact analyses.
Congress also analyzes the costs and benefits of proposed legislation.
Executive branch agencies are under similar requirements by virtue of E.O. 12044, and court decisions already require an investigation of costs and benefits under NEPA.
However, unlike NEPA, the regulatory analysis requirement of S.262 and S.755 would reach actions having major economic but insignificant environmental effects, would explicitly require agency justification of its choice among alternatives, and would not apply to licensing. The bills do not make a regulatory analysis the sole or even principal basis for agency decision making.
The agency remains free to make choices according to its authorizing statutes.
However, where economic arguments are proper, a regulatory analysis could be expected to render the agency record clearer and more complete on the economic dimension of agency action.
(2) Acency agenda setting: (3) agency deadlines; (4) centralization of administrative olannina and management functions.
The Ribicoff and Administration bills each require planning and management changes under similar formats: (1) agencies must establish priorities and report on specified regulatory actions periodically and in advance of action; (2) agencies must establish deadlines for completing action at the outset of rulemakings and adjudications; (3) each agency must report on its experience in adhering to priorities and deadlines; (4) each agdncy must establish or designate a single office which will have primary responsibility for planning and managing regulatory activities for the entire agency.
Notwithstanding these similarities, the bills differ in particulars.
For example, S.262 requires agenda setting earlier in an agency's deliberations and for a broader set of activities than S.755 (e.g. the S.262 agenda includes " priorities and goals", including
" specific areas" where regulations, standards, or enforcement policy are needed, and the agency's steps or plans to achieve its priorities and goals whereas the S.755 agenda covers a list and description of rules which the agency expects to propose or adopt in the next year).
S.262 attaches no legal effect to an agency's failure to comply with its agenda, but S.755 would require an agency to explain the omission of any proposed or final rule not listed in the regulatory 18141156
6 agenda before it could take action.
Neither bill would preclude proposal and adoption of a rule that was omitted from the agenda.
If an agency's failure to take action results in a judicial proceeding to " compel agency action... unreasonably delayed,"
then S.262 would direct a Court to consider, in' addition to any other relevant factors, the extent to which the agency has failed to complete action by an announced deadline. In contrast, the drafters of S.755 regard judicial consideration of missed deadlines as legally impermissible because of the bill's broad prchibition against all judicial review of agency actigg or inaction respecting planning or management functions. -
Under S.'755 regulatory actions expected to be completed within 160 days from the agency's notice of proposed action would not be subject to the deadline requirement.
The S.262 exemption extends only for 120 days.
The reporting requirements of S.262 are more burdensome than S. 755 (e.g.,
only S.262 requires agency analysis of reasons for prolonged agency proceedings). S.262 requires the agency planning and management office to report directly to the head of the agency.
S.755 assigns various other. supervisory and guidance responsibilites to agency heads which are to be exercised, in the case of a multi-member agency, by the Chairman or the members collectively, according to the assignment of formal decisional authority under applicable law.
The requirement of each bill that an agency designate or establish a single office to have " primary responsibility for planning and managing regulatory activities" would require some degree of realignment of functions within NRC.
No single NRC office now occupies such a position.
Neither bill defines " planning and management responsibilities," but we would not expect it to mean the agencies day-to-day licensing, standard-setting and enforement actions, although such actions would be subject to planning and management control by the single office.
Neither bill requires assignment of any specific functions to the single office; however, S.262 does direct the agency to "act through" the office in accomplishing certain tasks.
While the differences of detail between S.262 and S.755 undoubtedly bear upon the extent of burden placed upon administrative agencies, these appear to be differences of degree rather than kind.
Furthermore, agency preferences on these matters of detail are predictable.
An agency, for example, could be expected to choose fewer reporting requirements rather than more.
The essential policy question is thus whether planning and management reform under the format common to both bills is desirable.
In its analysis of the bills, the NRC staff took the position that it
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The judicial review prohibitions of the Administration's bill are very broad, forbidding the review of all agency actions respecting regulatory analyses, planning and management functions, and periodic review of significant rules.
18db(157
7 was already performing most of the functions and did not view the bills as entailing substantial neu resource needs.
As for judicial consideration of missed agency deadlines, the practical effect of S.262 -- when contrasted to S.755 -- is to give challengers to agency de.ay an additional litigation argument of uncertain proportion. S.262 could also foreseeably increase the number and frequency of suits to compel agency action, but the likelihood of this result is unknown.
What is missing from S.262 and thus from our analysis is the extent to which Congress intends the courts to enforce agency deadlines. In any event, the complexity of factors involved makes meaningful analysis extremely difficult.Ij No judicial consideration of deadlines (as in S.755) is difficult to justify because missing deadlines does constitute one indication of delay.
Furthermore, prohibiting judicial consideration would not remove all the influences which might induce an agency to pad deadlines.
In any event an agency would likely feel the need to explain a missed deadline to a court.
The approach of least uncertainty would be to combine S.262 with a Congressional statement that courts are not to become the enforcers of agency deadlines, but may consider all relevant factors including agency deadlines, where agency action is alleged to be unreasonably delayed.
(5)
Periodic review of existing rules. Both S.262 and S.755 require agencies periodically to review existing rules in effect, but the bills differ materially in approach.
Under S.262, an agency is required to revieu in detail at least one of its rules each year.
Each year, an agency is to examine all of its rules for the purpose of selecting which rule (or rules) it will review, and to formulate a 5-year plan specifying ' the rule (or rules) it intends to review in each of the succeeding five years.
The bill contains criteria bearing upon the agency decision to review and provides for the matters to be considered by the agency in the review itself.
Agency compliance would be monitored by the Congressional Budget Office, and apparently would be subject to judicial review. In contrast, S.755 requires an agency to review, on a one-time basis within the next 10 years, all of its major rules (rules having an annual economic impact of
$100,000,000 or more) and such other " rules, policies or practices as the agency may select", using the bill's specified criteria.
The bill explicitly provides for public and CMB participation in
-4/
For example, strong judicial enforcement of deadlines could be expected to encourage both agency padding of deadlines and encourage agency compliance with deadlines.
The legislative objective of decreasing administrative delay is thus, at the same time, apparently aided and subverted; the effect on the quality of agency decisions is any person's guess.
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8 the agency's decision to review including the timing of review.
Periodic review of rules will involve a significant commitment of resources, and the degree of impact will depend upon the frequency and extent of review that is mandated.
The S.755 review itself also differs from S. 2 62. S.755 requires the agency to " prepare an assessment of the rule, policy, or practice" under review, which assessment would be similar to, but more extensive than, a regulatory analysis for a proposed major rule.
Judicial review of the agency's decision to review as well as the assessment and outcome of the review itself appear to be barred under S 755.
The Commission's November 9, 1979 letter to Dr. Frank Press contained the following comment on a proposal of the President's Commission for periodic review of existing rules:
"NRC does not have an internal requirement to conduct a periodic and systematic reevaluation of existing rules.
Usually, NRC has reviewed its regulations only in response to some specific event (e.g.,
research results, a petition for rulemaking, new technology).
Nctable exceptions were the systematic review and revisions of regulations in the transportation and safeguards areas.
NRC intends to change its regulations for content and subsequently for structure.
The initial review will concentrate on rules broadly impacted by the TMI accident, such as operator training, emergency planning, environmental monitoring, and consistent treatment of fission product release caused by fuel failure.
The project will be carried out on the following schedule, subject to available resources: completion of initial review by June 1980, completion of relevant rule changes by 1982, and completion of systematic review of all safety regulations by 1984.
The Commission expects the review cycle to be repeated thereafter every five to seven years."
(6)
Expedited format for adjudicatory hearine. Both the Administration and Ribicoff bills introduce a revised procedural format for certain agency adjudications, including initial licensing proceedings.
The revised format of each would create a mainly written proceeding and would restrict oral presentations to oral argument respecting written submissions.
At the close of this phase of the proceeding, the presiding officer would designate substantial disputes of fact which could be material to the agency's decision and which could be resolved best by using formal procedures, including cross-examination.
An agency would not have discretion, but i 8139T 159
9 rather would be required to use the expedited procedures for any matter subject to them -- including licensing.
Agency action could not be set aside by a court because of an agency's " choice of procedures" unless the agency committed a " clear abuse of discretion which substantially prejudiced the rights of the parties."
There are several rationales advanced by proponents of procedural reform for this change in hearing format.
Some reformers believe that formal adjudicatory procedures are partly responsible for.
delay in agency decisionmaking.
Others dispute this premise, and in the case of nuclear energy regulation, their position is borne out by studies of the nuclear licensing process.
A second rationale is that formal adjudicatory procedures result in "over-judicialization" of administrative proceedings.
In some cases, the judicial format is unnecessary and operates as a barrier to public participation.
Still a further rationale for the hybrid format might not be reform at all, but rather would be to detail and make explicit an alternative procedural format so as to curtail judicial challenges as to its legitimacy.
Administrative reforms affecting the oral presentation of evidence and the cross-examination of witnesses are controversial.
Analysis of their wisdom will not alone explain the debate or the issues.
Hybrid-hearing formats are often supported or opposed for their symbolic as well as their substantive content.
Lawyers and judges, familiar with judicial procedures, may be reluctant to accept reforms that tamper with the heart of the administrative fact-finding process and that depart from the judicial model.
These considerations, as well as others, make the full impact of an expedited hearing process difficult to assess. Litigation and further delay of agency decisionmaking could result.because troublesome issues will doubtless arise during implementation.
Is a difference in expert opinion a " genuine and substantial dispute of fact?"
What is the scope of judicial review of an agency decision not to grant cross-examination?
Will the court accept the agency's characterization of a dispute or its importance to the agency's decision?
On the other hand, new litigation is not an inevitable consequence because neither bill creates a direct incentive for a presiding o.fficer to deny a request for formal procedures and cross-examination.
Thus, it is possible that litigation respecting the hybrid-hearing format would be restrained by presiding officers that granted cross-examination freely in order reviewing body. gp protect themselves against reversal by a However, this would not serve the reform objective of streamlining agency decision making.
5/
A presiding officer's decision to grant cross-examination would be interlocutory and, ordinarily, not reviewable until the conclusion of the proceeding.
1Sj@l160
10 An inexplicable feature of the expedited-hearing format contained in S.262 and S.755 is that it is made mandatory rather than discretionary with the agency. In the exis' ting APA, Congress has set procedural minimums for agencies, leaving them free to go further when agency decisionmaking would benefit from such procedures.
Now reformers apparently believe that agencies must be required to do less.
However, agencies may be willing to do so voluntarily.
There appears to be little agency opposition to the expedited hearing format of the bills,
- a. situation hardly indicative of agency unwillingness to embrace expedited procedures.
Under a permissive approach an agency would be free to apply expedited procedures to selected licensing actions, perhaps those in which trial-type procedures seemed most clearly a hindrance to public participation.
Through oversight, Congress could encourage timid agencies to handle a greater proportion of their business through hybrid procedures.
With specific reference to the NRC, a permissive approach would probably be preferable to a mandatory one because a new expedited procedural format could have unforeseen impacts on the nuclear licensing process and because the argument for mandatory hybrid hearings is not very compelling.
Opponents of a permissive approach argue that the stick, rather than the carrot, is needed because agencies already have discretion to adopt expedited procedures under current law but have not used it to reduce administrative delay. This argument has some merit but ultimately fails because it assumes that the expedited format provided by current law is a meaningful avenue for agencies to reduce delay.
In fact, an agency has numerous reasons to conclude that the format is an invitation for more, rather than less delay.
Chief among these are the lack of detail in existing law, which an agency could view as fertile ground for expensive and protracted judicial review.
S.262 and S.755 are attractive precisely because they limit the potential for counter productive delay that attends the discretionary authority available under existing law.
(7)
Seoaration of functions The separation of functions requirement has two major components. First, separation of functions provides that in certain types of proceedin'gs, decisions cannot be made by officials who either have performed investigative or prosacuting duties in that case or who are subject to the supervision of persons who have performed such duties.
This aspect of separation of functions includes the " heads of agency" exception which allous the Commission to vote to initiate a proceeding and then subsequently review the adjudicatory decision in that proceeding.
This aspect of separation of functions appears to be unchanged by either the Ribicoff bill or by S.755.
The bills do differ significantly however, in their treatment of the second aspect of separation of functions which is internal "ex carte" prohibitions between agency decisionmakers and agency advocates.
Both bills would 182kl161
11 abolish the present exception from this rule for initial licensing proceedings.
The Commission has only enployed that exception in uncontested initial licensings, and thus would not be significantly affected by its abolition.
However, its elimination would remove one possibility for liberalizing NRC's current practice.
Although there is some ambiguity, we believe the intent of the Ribicoff bill is to make no other changes in this area.
S.755 takes a markedly dif ferent approach than the Ribicof f bill.
Unlike the Ribicoff bill, S.755 provides different separaticn of functions rules depending on whether an expedited or a formal adjudicatory proceeding is involved.
For hearings conducted with full adjudicatory procedures, S.755 would not liberalize existing separation of functions rules.
However, in expedited proceedings agency decisionmakers would be permitted considerably greater contact with staff than are currently permitted.
The only persons who could not be contacted by Commissioners or other decisionmakers would be those " employed in the direct performance of investigative or litigating functions."
The term " investigative or litigating functions" would be defined narrowly as the presentation or cross-examination of wimnesses or the preparation of pleadings.
Administration spokesmen say that they expect that only a very few agency staff members would fall into that category in expedited
- proceedings.
Consequently, in an expedited proceeding those staff witnesses in ASLB hearings who are most knowledgeable about a subject, but cannot now be contacted off-the-record, would be freely available for informal discussion and counsel.
(8)
Subpoena authority. Both bills (S.262 and S.755) contain a general grant of subpoena authority to administrative agencies and provide for enforcement in a manner designed to reduce the delay that some agencies have experienced in obtaining compliance with their subpoenas.
While most agencies operate under individual statutes granting them subpoena authority, the authority is lacking or inadequate for several agencies, and this can be an occasion for delay.
Delay also arises under the current laws when the Courts construe them to require separate suits by the agency for enforcement and coercive penalties.
The bills attempt to consolidate the two step enforcement process into one.
The subpoena-power provisions of the bills do not adversely affect NRC.
The authority granted by the bills is in addition to authority found in existing law such as Sections 161c and 233 of the Atomic Energy Act.
Furthermore, the agency has not experienced unacceptable delay in enforcing subpoenas.
1 EBBat i 62
12 (9)
Agency review of decisions. Using nearly identical formats, each bill (S.262, S.755) authorizes an agency to create an employee board to review the initial decisions of presiding officers and to render final decisions on the agency's behalf without further review by the head of the agency.
One purpose of this provision is to clarify administrative authority to delegate final decision authority within the agency and to refuse review by the head of the agency.
The bille do not supersede existing law, such as section 191 of the Atomic Energy Act authorizing the establishment of the Atomic Safety and Licensing Board.
The effect of the provision on the Atomic Safety and Licensing Appeal Board, which does not enjoy explicit statutory recognition, and on the Commissions rules governing review of initial decisions (10 CFR 2.762, 2.786) is less clear.
The principal questggn concerns the application and effect of a provision in S.262 -
restricting an agency's right to review a decision of an employee board to four narrow grounds specified by statute.
Currently, the Appeal Board can undertake plenary review of all initial decisions of the Licensing Board, and the Commission may review important decisions of the Appeal Board.
It appears that the grounds for agency review specified in S.262 do not apply to the Appeal Board and, as to the Commission, are sufficiently broad to encompass its practice, but it would be desirable to seek Congressional assurances and clarifications in legislative history that S.262 is not intended to alter the NRC structure and practice.
(10) Administrative Law Judoes. The Ribicoff (S.262) and the Administration (S.755) bills, using slightly different approaches, create a regime for the appointment, evaluation, r.eappointment, and removal of administrative law judges (ALJs).
Briefly, each ALJ would be appointed by an agency for a fixed term of years.
At least once during that term an independent board would review the performance and qualification of the ALJ, and this review would provide the basis for a determination by the head of the Administrative Conference as to whether the ALJ is qualified to be reappointed.
Only qualified ALJs would be entitled to reappointment.
Separately, the head of the AdLinistrative Conference, on the basis of a review by the performance review board, could determine that the performance of a sitting ALJ was unacceptable, and the Merit Systems Protection Board could reduce in grade or remove the ALJ after hearing.
The principal difference between S.262 6/
There is no counterpart in S.755 or S.1291.
}bh k b
13 and S.755 is that the latter applies the new regime to all ALJs whereas the former applies to ALJs appointed af ter the effective date of the act.
Members of the Licensing and Appeal Board panels are not required to be ALJs and would not, under current NRC practice, be subject to the provisions of either bill.
(11) Funding for intervenors. Each of the three bills under consideration provides for public reimbursement of participation expenses in all agency (but not judicial) proceedings.
S.755 authorizes $20,000,000 in each of fiscal years 1980, 1981 and 1982 for all administrative agencies.
Each agency would administer its own program; the Administrative Conference would review agency rules and procedures respecting reimbursement programs, and would periodically report to the President on agencies which have inadequate programs.
The criteria for payment of expenses would essentially be (1) whether the participant is an " effective representative of an interest" which could reasonably be expected to " contribute substantially to a f air disposition of the proceeding,"
and (2) whether the participant's economic interest in the proceeding is comparatively small, or the participant's resources are insufficient.
Payment determinations would not be subject to judicial review.
S.262 adopts the same criteria for payment of participation expenses as S.755, but would place responsibility for it in the Administrative Conference to assure administrative consistency and to avoid " problems that might arise if the agency responsible for deciding a matter is also responsible for compensating" participants in the proceeding.
The S.262 authorization of funds for the reimbursenent program is blank because the draf ters could not agree on a specific amount.
S.1291 authorizes $20,000,000 for each of fiscal years 1980, 1981 and 1982. Like S.262, S.1291 authorizes the Administrative Conference to pay participation expenses after consultation with the agency.
The reimbursement criteria of S.1291 vary in minor detail from S.262 and S.755.
These bills present the issues of (1) the desirability of funding for public participation expenses,. (2) the appropriate content of criteria for determining which participants should be reimbursed, (3) the allocation of responsibility for the administration of a funding program, as between the Administrative Conference, and the agency conducting the proceedings, and (4) the desirability of judicial review of funding determinations. The arguments for and against intervenor funding have been fully developed before the Commission in other contexts.
However, certain premises are now accepted by most interested persons.
)
public participation is not just appropriate, but is highly desirable, in agency proceedings involving the exercise of agency discretion which 18db6s 164
14 could affect members of the public, (2) economic expense can be a barrier to participation in administrative proceedings by members of the public, and (3) the "public interest" is neither singular nor homogeneous but rather is a collection of sometimes disparate private interests, with no single entity having the ability to speak for or represent the public interest.
The better choice, as between the Administrative Conference and the agency conducting the proceeding, for administering the details of an intervenor funding program is not clear.
It is argued that the Conference would bring a desirable consistency to funding decisions, that it would eliminate the suspicion of bias which could accompany agency administration of a funding program, and that it would permit more flexible allocation of funds between agencies.
However, the value of consistency among agencies is unclear for determinations which, for example, call for analysis of the usefulness of particular interests in a particular proceeding before a particular agency.
Furthermore, there are other alternatives which could make use of the Conference in a review or supervisory capacity and which would have consistency among agencies as a funding objective. As for the " elimination" of agency bias in funding determinations, it is quite possible that a strong Conference role would, in the eyes of some, only create a new target for criticism.
The Conference will not be immune to allegations of bias.
Mcreover, the fact-specific nature of funding determinations and the legitimate interests of an agency in particular funding decisions will likely lead the Conference to rely heavily on agency recommendations.
Such a perpetuation of an agency role probably means perpetuation of the suspicion of bias.
Funding determinations might initially be made by the agency, subject to appeal to the Administrative Conference.
As an alternative, an agency might be required to consult the Conference before making a funding determination. In either casc, the Conference would serve as a mechanism for maintaining consistenci among agencies and as a counterweight to the institutional view of the agency.
As to t he final issue -- judicial review of funding determinations
-- the;e are persuasive arguments. for and against such review.
The argument for judicial review is that the standards for funding determinations are sufficiently well-developed as to be susceptible to judicial application, and that measures are available to protect against such review becoming an occasion for delay.
On the other side, it can be argued that administrative decisions allocating funds from a fixed pool.hich must cover competing present and future claims should not be subject to judicial review because (1) the cost of litigation indirectly reduces the amount available to cover other claims and (2) in cd hoc litication, courts may appear to give insufficient weight to the need to maintain the pool at a level sufficient to cover corpeting cr future claims that are not before the court for evaluation.
18(h8s 165
15 (12) Exoanded Administrative Conference. The Administrative is a small, independent Federal agency that studies and makes recommendations about the administrative procedures of Federal agencies.
Both S.262 (Ribicoff) and S.1291 (Kennedy)
Conference and add to its functions. 7yculd restructure the S.262 creates a new Conference headed by an Administrator who would discharge the functions of the Conference af ter consultation with a new, broadly representative nine-person Advisory Commission.
To the current functions of the Conference, S.262 would add authority to (1) issue advisory guidelines on, and monitor agency compliance with, the APA, FOIA, Sunshine Act and the Privacy Act, (2) administer an intervenor funding program, (3) testify on legislation and appear as amicus curiae in judicial proceedings concerning administrative procedures, and (4) evaluate the performance of ALJs.
S.1291 takes a slightly different approach, in that it maintains the existing structure of the Conference but strengthens the powers of the Chairman and requires that at least one-fourth of the Conference be broadly representative of regulated and consumer interests.
The Chairaan of the Conference would, in addition to existing responsibilities, be empowered to (1) establish a program for funding public participation expenses, (2) comment on agency procedures and rules, (3) receive and report on complaints about agency compliance with the APA, FOIA, Sunshine and Privacy Acts, and (4) review the reporting requirements of other independent agencies from the standpoint of whether the agency's collection of information was necessary for the proper performance of its functions..S.1291 would establish a broadly representative Committee on Administrative Procedures with responsibility for drafting generally applicable. administrative procedures for agency rulemakings and adjudications which, if approved by the Conference, would be binding on all federal agencies.
- However, an agency could request a waiver or modification of particular rules.
Each bill reduces agency freedom and discretion concerning administrative procedures by transforming the Administrative Conference -- an essentially academic body -- into an authoritative independent agency with expertise in and responsibility for generally applicable administrative procedures.
No other rival agency would have a comparable, government-wide perspective.
However, the degree and importance of the agency discretion which could be lost to a transformed Administrative Conference is unclear and could be insubstantial.
The significant considerations
-7/
S.755 does not change the Conference other than to grant it authority to review and report on agency rules, procedures, and programs for funding intrevenors.
lb b
16 which are difficult to evaluate include: (1) the actual ability and inclination of the Conference to shed its academic posture and assume a more authoritative position, (2) the willingness of the courts to defer to Conference decisions, and (3) the success of the agencies in convincing the Conference and the courts that dissimilar agency mandates reasonably require a substantial degree of agency freedom to formulate individualized procedures for particular proceedings.
If it may reasonably be assumed that there is room for a measure of uniformity among agencies in their administrative procedures and that the Conference would administer its functions responsibly, then neither S.262 nor S.1291 are objectionable as a general matter.
The particular feature of S.1291 authorizing the Conference to adopt binding, generally applicable administrative procedures deserves separate discussion because it is the most obvious intrusion on agency discretion and because it contains no standards for the determination of agency requests for waivers or modifications.
negarding the absence of standards, the bill is quite explicit on the purpose of generally applicable procedures, and we would expect that, in deciding upon agency requests for waivers, the Conference would adhere to this purpose and would consider (1) the fairness, quality and efficiency of the requesting agency's procedures and the extent of public participation they permit in comparison to the Conference's generally applicable procedures and (2) the particular needs of the requesting agency which are attributable to its mission or business and which are offered by the agency as justification for its request for waiver.
For the purpose of analyzing the significance of the loss of agency discretien due to the Conference's power to issue binding regulations, it is helpful to recall that the difference between binding regulations and advisory guidelines can be one of degree.
For example, courts can interpret regulations and find then to be inapplicable and courts can accord great weight to advisory guidelines of expert agencies so as to make then dispositive.
Earlier this year, OMB circulated for comment the general outlines of a plan to reorganize the Conference.
The plan, which appeared to call for increased Executive branch control over the Conference
-- and, thus, indirectly over the independent agencies -- was roundly criticized and is now " dead."
However, the Administration will likely take a position on restructuring the Conference when it presents its revised position to the Congress on comprehensive regulatory reform.
18dyl167
17 Whf.le the reorganization plan is dead, the issue of the independence of the Conference is very much alive.
As reflected in the number of Executive branch units which have regulatory coordination responsibilites, there is a need for a degree of centralization of administrative regulation within the Executive branch.
Yet, a tension exists between this objective and the need to maintain the independence of agencies that have been created as independent bodies by the Congress.
Independent agencies currently look to the Administrative Conference for guidance on questions of admin-istrative procedure, and Congress may add to the powers and influence of the Conference.
If the independence of the Conference is reduced or its supervisory functions transferred to the Executive branch, this will inevitably affect the independence of the independant commissions.
(13) Informal rulemaking.
Both S.755 and S.1291 alter the procedures for notice and comment rulemaking
(" informal rulemaking").
Each bill continues the authority for an agency to dispense with the required procedures when adherence would be impracticable, unnecessary or contrary to the public interest. The Administration's proposed bill (S.755) (1) spells out in greater detail than existing law the contents of an agency notice of proposed rulemaking, (2) requires the agency to allow at least 60 days for public comment on the rule and (3) directs the agency to respond to the "significant issues" raised by the comments if it decides to adopt a final rule.
These changes would not materially affect NRC rulemaking practices.
S.1291 woul'd make changes in the content of an agency's notice of proposed rulemaking, and, more importantly, would r,equig7 more extensive procedures for "significant" or major rules. -
For major rules, an agency would first publish an " advance notice" of rulemaking which identified the area of inquiry and general agency objectives and which invited public suggestions. In its discretion, an agency could hold a public meeting. Thereafter, the agency would publish a notice of proposed rulemaking which invited comment.
The agency could, in its discretion, use a variety of written or oral procedures. If the agency adopted a final major rule, S.1291 would require the agency to discuss the public comments and explain why it rejected significant alternatives.
Finally, S.1291 would direct an agency to maintain a file of papers relating to the rulemaking which would be available to the public and the Courts.
S/
Significant or major rules are rules having an annual impact of $100,000,000 or rules which an agency determines to have equally inportant economic effects.
18jld,168
18 The purpose of S.1291 is to increase public participation in agency informal rulemaking by (1) increasing the publicly available information and analysis, (2) requiring agency consultation with the public earlier in the consideration of major rules than under existing law, and (3) detailing the various alternative devices for public participation which are available to the agency.
Th'e bill makes no pretense of intending to stream-line or expedite informal rulemakings.
However, with one exception, the bill is unlikely to lenghthen NRC rulemaking since the existing agency practice largely conforms to the bill.
The exception is the two-phased approach to major rules (advance notice of rulemaking and 30 days for comment followed by the notice of proposed rulemaking and 60 days for public comment).
Other than the potential for delay, we are aware of no persuasive arguments in opposition to the rulemaking changes of S.1291 with respect to public participation.
The value of public participation in agency proceedings is a matter of general agreement, and rulemaking that concerns significant rules of general application and the exercise of agency discretion so as to affect the public _s the classic case for it.
The existing provisions of the APA are sparse en this topic, and the courts are already interpreting the Actsoastorequireincreaspopportunityforpublicinvolvement by administrative agencies.
S.1291 would make one additional change relating to rulemaking by requiring ageacy officials involved in the decisionmaking process for a major rule to keep records of all oral and written communications
" relevant to the merits of a rulemaking" received from persons outside the agency after notice of proposed rulemaking.
These records would become part of the agency's publicly available rulemaking file.
Legislation respecting ex parte contacts during rulemaking may be desirable because 9xisting law, as determined by Courts of Appeals decisions as of t?.is writing, is unsettled.
However, the Office of General Counsel is unable to identify the most desirable legislative approach at this time.
We are analyzing the law and custom on agency separation of functions involving ex parte prohibitions in rulemaking; our conclusions will be forthcoming.
Depending on their content, they could form the basis for a comprehensive revision of NRC practices and for legislation, if necessary, tailored to URC's particular needs.
9/
E.c.,
Portland Cement Assn. v. Ruckelshaus, 486 F.2d 375, 393 (D.C. Cir. 1973), holding that it is not conser t
with the purpose of a rulemaking proceeding to promeig;w rules on the basis of data that, to a critical dec/cc, known only to the agency.
18M 169
19 (14) Review of Regulatory Agencies.
The Kennedy bill proposes two reforms not included in either S.262 cr S.755.
First, the bill directs the President, over the next 10 years and in consultation with a newly created, broadly representative committee on Regulatory Evaluation, to review and report on possible regulatory reform for each of the Federal regulatc;, agencies.
For example, the President would be required to report on and propose legislation as necessary for NRC in 1986, along with other specified energy agencies.
In making his report, the President is to consider whether reforms would (1) increase economic competition, (2) achieve agency goals less restrictively or without regulation (3) increase regulatory effectiveness, and (4) enhance agency protection of public health and safety.
The bill also spells out the steps to be followed by the Congress in response to the President's report and reforn legislation.
The second reforn requires all Federal agencies to consider the effects of its actions on competition and to adopt the least anticompetitive alternative which will achieve statutory goals.
Howe er this reform would not apply to regulations or licenses basc upon hee.lth or safety standards, and would thus apparently excluce URC.
Conclusion As ue have previously mentioned, the first task for the Commission is to determine the extent to which it will comment on the reform bills.
We recommend that you concentrate on the policy issues and features of the bills which could reasonably be expected to pose substantial problems for the Commission.
As a point of departure for your discussions, we offer the following issues and summarized content of URC comments:
1S/ Regulatory analyses.
The sufficiency of an agency's (1) regulatory analysis should not be judicially reviewable. It is important that the regulatory analysis be competently and responsibly done, and independent agencies can be held accountable for this task through periodic review by the Congressional Budget Office (S.262) or an expanded Administrative Confere~nce.
Judicial review is an unsatisfactory alternative because it would encourage an agency to prepare a litigation document rather than an analysis that was frcmed according to the specific needs of the agency decisionmaker.
Judicial review of environmental impact statements has tended to formalize and increase the independent significance of them.
The Congressional purpose underlying the regulatory dnalysis iS not analogous to that of the EIS, and would not be furthered by either a formalization el the regulatory analysis or its predominance in decisionmaking.
18jyls 170 -
10/
Uumbers refer to the listing and discussion of issues earlier in this paper.
Not all issues are deemed of sufficient importance to merit ~ NRC comment.
20
( 2 )-( 4 ) Agency Planninc and Management Functions.
If the Courts are to be permitted to take account of missed agency deadlines (S.262), Congress should be explicit about its intentions.
Courts could foreseeably become the enforcers of agency deadlines, and such an eventuality would have uncertain and not necessarily beneficial effects on the quality of agency decisions,
- Thus, Congress should make it clear that (1) a strong judicial role is not intended, and (2) courts may consider agency deadlines but should not accord them weight beyond that given to other relevant factors, including the agency's justification for its inaction.
(6)
Expedited Hearina Procedures for Licensinc.
By requiring agencies to use hybrid hearings for licensing, Congress would depart from its desirable prior practice of granting agencies discretion to formulate their own procedures subject to constitutional and statutory minimums.
The departure is unnecessary because most agencies do not oppose hybrid hearings in principle and because agencies could reasonably be expected to select a hybrid format in at least some adjudications if the format were statutorily explicit.
The availability of Congressional oversight makes the agency accountable for its choice.
Furthermore, in the case of nuclear licensing, it is preferable not to mandate expedited hearing procedures.
Formal procedures.re not a significant factor in licensing delays, and the implementation of hybrid-hearing reforms going to the heart of the fact finding process will be controversial and potentially time-consuming.
The hybrid-hearing format should be discretionary rather that mandatory.
Congress should recognize that the discretionary authority under current law is not, in fact, a realistic alternative for reducing administrative delay.
(7)
Separation of Functions.
As a consequence of recent experiences in which ex parte constraints have made more difficult the agency's performance of statutory dutics, we are analyzing alternative constraints and practices.
Until such time as our study is completed, we would oppose changes in the law which broadened e.3 parte prohibitions.
(9)
Acency Review of Decisions.
The application of the statutory grounds for agency review in S.262 to the Atcmic Safety and Licensing Appeal Board is unclear.
Informally, we understand it has no application.
Congress should be asked 1.o provide confirmation of this interpretation.
18f11t 171
21 (11) Intervenor Fundino.
If Congress is to authorize funding of public participation expenses, then each agency should admini-ster its own program subject to consultation with, or oversight by, the Administrative Conference.
The Conference can lend uniformity among agencies through a role of consultation and review encompassing each agency's funding rules and determinations.
Ultimately, funding determinations are factual and particular to each proceeding and each agency.
Consultation and review by the Conference is also a reasonable protection against the possibility of agency bias.
Administration of the funding program by the Conference is unlikely to defuse fully the suspicion of bias.
(12) Excanded Administrative Conference.
Non-binding guidelines respecting administrative procedures that were adopted by the Administrative Conference would probably reflect the real differences between agencies better than binding regulations.
However if Congress authorizes the Conference to adopt binding administrative rules of general application, then it should express an intention that the Conference freely grant requests of independent agencies for waivers or modifications.
Uniformity of administrative procedures is not of overriding value among agencies which have sharply varying mandates and activities.
What is important, and what we would expect the Conference to consider in determining requests for waivers, is (1) the fairness, quality and efficiency of the requesting agency's procedures and the extent of public participation they permit in comparison to the Conference's procedures, and (2) the particular needs of the requesting agency offered as justification for its request.
If the Conference is satisfied that an agency's procedures.
are fair and efficient, and provide for adequate public participation, it should ordinarily grant a request for waiver or modification.
Otherwise, we would not oppose strengthening the Conference and expanding its functions.
However, we would oppose changes which compromised the independence of the Conference because it would jeopardize NRC's reliance on the Conference for objective guidance on questions of administrative procedure.
This concludes our list of issues and summarized comments.
Unless a Commission meeting is deemed desirable, we would propose to draft a letter of comment to Senators Ribicoff and Kennedy and Congressman Rodino for the Chairman along the above lines after obtaining your general consensus on the substance of the comments we have suggested.
Individual offices should provide guidance by December 12, 1979.
Attachments:
(1) Comparison of Administration and Ribicoff Bills (2) S.
262 A/g}"
7 (3) S.
755 (4) S.
1291 jg[
(5) Memorandum for Leonard Bickwit, Jr.,
from Robert B.
Minogue, dated November 26, 197 cc:
ATTACHMENT 1
COMPARIS0d OF ADMINISTRATION AND RIBICOFF BILisS 182&173
Comparison of Administration and Ribicoff Regulatory Reform Bills
~
Administration (S. 755)
Ribicoff (S. 262)
REGULATORY ANALYSIS Applicability Rules expected by the agency to have S1.00 million annual effect or likely to an annual effect of $100 million or have "an equally significant effect" on more on economy, or to cause substantial the national economy.
change in costs or prices for individual industries, or otherwise to have a " major impact."
Analysis required for proposed rule Need for and objectives of, proposed rule; Substantially the same, alternatives; preliminary analysis of projected benefits and adverse effects and of the effectiveness in meeting stated objectives of proposal and alternatives.
Analysis required for final rule Need and objectives; alternatives; analysis Need and objectives; alternatives and of benefits and effects; explanation of why why each was rejected; " detailed analysis" 7 he rule attains its objectives with less of projected economic and noneconomic hidverseeconomiceffecc. than alternatives or effects like health and safety; summary and why more costly approach was selected; assessment of comments.
summary and assessment of comments.
~
N A
Oversight Copies of all analyses to OMB.
No OMB duties Congressional Budget Office to review specified.
selected rulemakings for comp]i.ance with these requirements.
CBO to keep Congcess fully informed of any problems.
Administration (S. 755)
Ribicoff (S. 262)
Judicial Review Analyses not subject to judicial review, same.
except as required by some other law.
REGULATORY AGENDA Applicability
~
Semiannual listing of all rules expected Annual report of " regulatory priorities to be proposed or promulgated in the next and goals" for that fiscal year, including 12 months; list of " rules, policies and development of regulations, standards, and practices" to be reviewed [see below enforcement policies.
re " Review of Regulations"].
Information required Descripticn, objectives, legal basis, Action to be taken or procedure to be
__, action dates, and responsible official.
adopted to achieve priori ties and goals, extent to which previous year's priori ties Cr)
Exs and goals were matched by action, j$>
knowledgeable official.
[
Effect of omission Explanation of omission required when Agenda is for information only and does omitted rule is proposed or published.
not affect any action omitted.
No judicial No judicial review.
review.
Administration (S. 755)
Ribicoff (S. 262)
DEADLINES App?.icability All rulemakings and adjudications.
Same.
Infonaation required Completion date.
If that's more than Same, though report of past failure, a year away, completion dates for major a separate document to Congress and ACUS, portions of the proceeding.
First also to contain an analysis of 10 percent regulatory agenda each year must contain of proceedings pending the longest and a report on failures to meet deadlines in report of procedural changes made to the prior year.
improve the regulatory process.
Exemption Proceedings to be completed within Proceedings to be completed within 180 days.
Date must be set if 180 days 120 days.
Date must be set if 120 days are exceeded, are exceeded.
Updates New dates must be announced when an old Same.
deadline will be missed by more than 30 days.
_m i
-a CN
Administration (S. 755)
Ribicoff (S. 262_)
AGENCY MANAGEMENT Agency head to:
SubstanLially the same, plus the 1.
issue guidelines to identify planning office is to set the deadlines rules with significant impact; for each proceeding.
2.
issue guidelines to ensure that final rules are adopted only after consideration of economic ef fects and other elements of regulatory analysis, compliance mechanism, consultation with state and local governments; 3.
establish an office for regulatory planning and management.
REVIEW OF REGULATIONS Applicability Each rule with a $100 million annual effect, Significant rules.
and other significant rules, policies, or practices.
Scope and Timing All such rules, policies, and practices One or more rules to be reviewed to be reviewed over a 10-year period, per annually over five years, per schedule schedule to be published for comment.
published annually.
r
-a-
%4
Administration (S. 755)
Ribicoff (S. 262)
Nature of Review Assessment of benefits, adverse effects, Substantially the same.
compliance problems, alternatives or revisions that would achieve objectives, extent of overlap with other agency require-ments.
Summary publis'. S for comment in Federal Register.
Oversight Draft schedule to OMB.
Schedules may be Report on each review to Congress.
amended with OMn concurrence.
CBO to monitor compliance.
Exemption IRS.
None.
m
-S-CO
Administration (S. 755)
Ribicoff (S. 2 f> 2_)
INFORMAL HUI,EMAKING Notice expanded to solicit less burdensome No change in current S 553.
alternatives; comment period minimum 60 days; statement of basis and purpose to contain response to significant issues raised by comments.
EXPEDITED FORMAI, !! EARINGS Applicability All formal (on the record) rulemaking, Substantially the same.
ratemaking, and licensing, except license revocation or suspension; any other formal proceeding designated by the agency after consideration of the extent to which a full trial is essential in that proceeding (disputed facts?
many participants?).
-a Procedure 1.
Submission of written views.
Same.
2.
Oral argument.
3.
Designation for cross-examination of sy g
disputed issues of fact which can only be resolved by formal cross-examination and which are likely to be outcome-determinative.
Judicial review Agency choice of procedures may be set aside same.
only on a finding of " clear abuse of discretion that substantially prejudiced the rights of the parties."
Administration (S. 755)
Ribicoff (S. 262)
~
COMPULSORY P itO C E S S Qulpoena ;ui t lio r i 1.y Agencies authorized to issue subpoenas same.
in adjudications.
Enforcement District court order; venue in any district Same.
in which recipient transacts business or in which the proceeding is carried on.
Civil penalties None.
Up to $5,000 per day for failure to comply with agency process if failure continues beyond 30 days after notice of default.
Court may stay penalties under applicable legal standards.
Court deadline Co District court to issue final ruling None.
p>within 45 days, unless all parties request an extension.
CD Administration (S. 755)
Ribicoff (S. 262)
Preenforcement suits Barred unless notice of default has been Same.
served or such a right of action specifically authorized by law.
Agency may transfer preenforcement suit to enforcement proceeding court.
Administrative sanctions Agency authorized to strike pleadings, same.
refuse.to accept materials, draw adverse inferences, if a party fails to comply with process in a proceeding.
TRIAL-TYPE PROCEEDINGS Authority of ALJ Current authority augmented with right to Same.
require written direct and cross-examination; summary decision authorized when there is no go gg genuine and substantial dispute as to any yp>
material fact.
.a
(([
Duty of ALJ Assure that discovery is completed Same.
expeditiously, provide a concise record, set deadlines, and generally act to assure prompt disposition..
Administration (S. 755)
Ribicoff (S. 262)
SEPARATION OF FUNCTIONS Applies separation of functions principle Same.
to formal rulemaking, but presiding official may be assisted by agency employees designated for that purpose.
AGENCY DECISIONS Initial decision may be made by agency Substantially the same, though the bill itself, presiding official, or some other specifies the circumstances under which employee.
Agency may delegate final discretionary review would be appropriate, authority to presiding official or to an e._g., clearly erroneous conclusion of employee review board, subject to law, novel legal or policy issues, certiorari-type review under circumstances clearly prejudicial procedural error.
specified by agency rule.
JUDICIAL REVIEW l.
Courts of appeal to have exclusive 1.
No comparable provision.
jurisdiction of actions for review of rules.
2.
Courts may take mic;ed deadlines into account in deciding whether agency action has been " unreasonably delayed" (5 U.S.C.
S 706(1)).
oo MP 00 N
-9_
3 Administration (S. 755)
Ribicoff (S. 262)
PUBLIC PARTICIPATION Standards
$20 million annually for participants in Substantially the same, except no proceedings who:
represent an otherwise amount specified.
unrepresented interest expected to contribute substantially to the fair disposition of the proceeding; and whose economic interest in the proceeding is small compared to the cost of participation, or who can't afford to participate without assistance.
Decisionmaking authority By agency unit not engaged in the proceeding, By ACUS.
under agcncy rules to be reviewed by ACUS.
Judicial review Determinations as to funding not subject to No comparable provision.
judicial review.
00 CA.
P --
00 LM
Admin is tra ti on (S. 755)
Ribicoff (S. 262)
ADMINISTRATIVE LAW JUDGES Appointment Chairman of ACUS to set selection criteria Office of Personnel Management to and make available to agencies a list of prepare register of 10 eligibles for no fewer than S eligibles from whom the appointment by agency to 10-year term.
agency may choose for an ALJ vacancy.
Appointment for 7-year term.
Evaluation Chairman of ACUS to establish performance same procedure (responsible official appraisal system so that only an "af firma-is termed " Administrator" of ACUS) tively qualified" ALJ is reappointed for before reappointment to 10-year term, an additional 7-year term.
Agency must reappoint any ALJ found qualified by ACUS and may not retain one found not qualified.
ALJ not reappointed to be placed in position at equal pay.
Decision not to reappoint is not appealable.
Removal before expiration of term ACUS may seek to have Merit Systems Protection Same.
Board remove, downgrade, or discipline an ALJ for. unacceptable performance or misconduct.
~~
oo 4%
Reassignment ACUS may detail ALJ's if home agency consents.
Same.
Administration (S. 755)
Ribicoff (S. 262)
ADMTHISTRATIVE CONFERENCE Structure No real change; requirement that ACUS members ACUS totally restructured to eliminate be " members of the practicing bar, scholars the 92-member Conference and Council; in the field of administrative law or govern-ACUS functions to be vested in ment, or others specially informed by Administrator, appointed to four-year knowledge and experience with respect to term, to be advised by 9-member Federal administrative procedure" eliminated.
Advisory Commission.
ACUS to be an independent agency.
Functions No changes except as noted above (selection As noted above (evaluation of ALJ's, and evaluation of ALJ's, review of agency control of public participation public participation rules).
assistance), plus issuance of guidelines for paperwork red uc ti on,
plus study functions now in law.
Augmented authority No provision.
ACUS may require other agencies to provide any needed information.
Originally applicable confidentiality requirements apply to ACUS as well.
CO OO P
__ Oc Ln
Administration (S. 755)
Ribicoff (S. 262) e MISCELLANEOUS Budget and leg is l a t i.ve recommendations None.
Independent regulatory coimnissions to submit budget requests to Omit and Congress concurrently.
OM13 may not require advance cle: trance of legislative comments of the independents, and any coimaa n t s to OMB must go to Congress concurrently.
Appointments to independent commissions None.
President to nominat.o we11-qualified persons so as to achieve well-balanced, oiversified membership.
Senate confirmation of chairinan required, even if President select.s sitting member.
d9 -
Ch