United States. Congress. House. Committee on the J.

Congressional review of administrative rulemaking : hearings before the Subcommittee on Administrative Law and Governmental Relations of the Committee on the Judiciary, House of Representatives, Ninety-fourth Congress, first session, on H.R. 3658, H.R. 8231, and related bills ... online

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Online LibraryUnited States. Congress. House. Committee on the JCongressional review of administrative rulemaking : hearings before the Subcommittee on Administrative Law and Governmental Relations of the Committee on the Judiciary, House of Representatives, Ninety-fourth Congress, first session, on H.R. 3658, H.R. 8231, and related bills ... → online text (page 1 of 63)
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CONGRESSIONAL REVIEW OF ADMINISTRATIVE

RULEMAKING

R E C F ! \A F . P.



SEP 2 1976
li U. LAW LIBRARY

HEARINGS

BEFORE THE

SUBCOMMITTEE ON ADMINISTRATIVE LAW
AND GOVERNMENTAL RELATIONS

OF THE

COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

NINETY-FOURTH CONGRESS

FIRST SESSION
ON

H.R. m58. H.R. 8281. and Related Bills
CONGRESSIONAL REVIEW OF ADMINISTRATIVE RULEMAKING



(KTOBER 121. •22. 23. 2i). M). 31: :uid NOVEMBER 7. 197."i



Serial No. 30




va



,58''''



Printed for the use of the Committee on the Judiciary

U.S. GOVERNMENT PRINTING OFFICE
63-550 O WASHINGTON : 1975



HQ8IH£ASTEfiN UtNiVLRSlTV snunm .-, , -.r, ,,r,n,-,



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COMMITTEE ON THE JUDICIARY



PETER W. RODINO, JR., New Jersey, Chairman



EU>WARD HUTCHINSON, Michigan
ROBERT McCLORY, Illinois
TOM RAILSBACK, Illinois
CHARLES E. WIGGINS, California
HAMILTON FISH, Jr., New York
M. CALDWELL BUTLER, Virginia
WILLIAM S. COHEN, Maine
CARLOS J. MOORHEAD, California
JOHN M. ASHBROOK, Ohio
HENRY J. HYDE, Illinois
THOMAS N. KINDNESS, Ohio



JACK BROOKS, Texas
ROBERT W. KASTENMEIER, Wisconsin
DON EDWARDS, California
WILLIAM L. HUNGATE, Missouri
JOHN CONYERS, JR., Michigan
JOSHUA EILBERG, Pennsylvania
WALTER FLOWERS, Alabama
JAMES R. MANN, South Carolina
PAUL S. SARBANES, Maryland
JOHN F. SEIBERLING, Ohio
GEORGE E. DANIELSON, California
ROBERT F. DRINAN, Massachusetts
BARBARA JORDAN, Texas
RAY THORNTON, Arkansas
ELIZABETH HOLTZMAN, New York
EDWARD MEZVINSKY, Iowa
HERMAN BADILLO, New York
ROMANO L. MAZZOLI, Kentucky
EDWARD W. PATTISON, New York
CHRISTOPHER J. DODD, Connecticut
WILLIAM J. HUGHES, New Jersey
MARTIN A. RUSSO, Illinois

Earl C. Dudley, Jr., General Counsel
Garner J. Cline, Staff Director

Herbert Fuchs, Counsel

William P. Shattuck, Counsel

Alan A. Parker, Counsel

James F. Falco, Counsel

Maurice A. Barboza, Counsel

Thomas W. Hutchison, Counsel

Arthur P. Endres. Jr., Counsel

Daniel L. Cohen, Counsel

Jay T. Turnipseed, Counsel

Franklin G. Polk. Counsel

Tho.mas E. Mooney, Counsel

Alexander B. Cook. Counsel

Constantine J. Gekas, Counsel

Alan F. Coffey, Jr., Counsel

Kenneth N. Klee, Counsel

Raymond V. Smietanka, Counsel

Subcommittee on Administrative Law and Governmental Relations
WALTER FLOWERS, Alabama, Chairman



GEORGE E. DANIELSON, California
BARBARA JORDAN, Texas
ROMANO L. MAZZOLI, Kentucky
EDWARD W. PATTISON, New York



CARLOS J. MOORHEAD, California
THOMAS N. KINDNESS, Ohio



William P. Shattuck, Counsel

Jay T. Turnipseed, Counsel

Alan F. Coffey, Jr., Associate Counsel

David Minge. Consultant



(n)



CONTENTS



Hearings held on — Pa^e

October 21, 1975 ._ 1

October 22, 1975 .__ 253

October 23, 1975 351

October 29, 1975 361

October 30, 1975 425

October 31, 1975 463

November 7, 1975 495

Text of—

H.R. 3658 3

H.R. 4629 12

H.R. 4630 21

H.R. 6110 30

H.R. 7219 39

H.R. 7689 42

H.R. 7977 47

H.R. 7978 56

H.R. 7979 65

H.R. 8231 74

H.R. 8374 79

H.R. 9235 88

H.R. 9254 97

H.R. 9313 106

H.R. 9314 111

H.R. 9801 116

H.R. 10164 121

H.R. 10166 126

H.R. 9254 131

Witnesses —

Anderson, Hon. Thomas J., Michigan State Representative 285

Beddingfield, Edgar T., M.D., member of the house of delegates,

American Medical Association 404

Prepared statement 416

Blanchard, Hon. James J., a Representative in Congress from the

State of Michigan 162

Prepared statement 164

Brinkley, Hon. Jack, Representative in Congress from the State of

Georgia 169

Prepared statement 174

Butler, Hon. M. Caldwell, a Representative in Coiigress from the

State of Virginia 178

Prepared statement 178

Clausen, Hon. Don H., a Representative in Congress from the State of

California 165

Clawson, Hon. Del, a Representative in Congress from the State of

California 36 1

Prepared statement 369

Concklin, Bert, Deputy Assistant Secretary, Occupational Health and

Safety Administration, Department of Labor 477

Emery, Fred J., Director, the Federal Register 351

Gehrig, Leo J., M.D., senior vice president, the American Hospital

Association 392

Prepared statement 397

Gellhorn, Ernest, professor of law. University of Virginia 253

Memorandum 267

(HI)



IV

Page
Holden, Raymond T., M.D., chairman, Board of Trustees, American

Medical Association 404

Prepared statement 412

Hutchinson, Hon. Edward, a Representative in Congress from the

State of Michigan I75

Prepared statement 176

Kurzman, Stephen, Assistant Secretary for Legislation, Department

of Health, Education, and Labor 442

Levitas, Hon. Elliott H., a Representative in Congress from the State

of Georgia 140

Prepared statement 140

Lewis, Robert, General Counsel, Federal Trade Commission 463

Long, Hon. Gillis, a Representative in Congress from the State of

Louisiana 185

Prepared statement 182

McKevitt, James D. "Mike," Washington Counsel, National Federa-
tion of Independent Business 388

Prepared statement 390

Mintz, Benjamin, Associate Sohcitor, Occupational Health and Safety

Administration 477

Neiditz, Hon. David, chairman, Senate Judiciary Committee of the

Connecticut General Assembly 685

Witnesses — Continued

Pepper, Hon. Claude, a Representative in Congress from the State of

Florida 438

Prepared statement 440

Peterson, Harry N., counsel, American Medical Association 404

O'Hara, Hon. James G., a Representative in Congress from the State

of Michigan 495

Prepared statement 496

Regula, Ralph S., a Representative in Congress from the State of

Ohio 473

Prepared statement 475

Sanders, Kenneth E., special counsel. Joint Committee on Administra-
tive Rules, Lansing, Mich 285

Scalia, Antonin, Assistant Attorney General, Office of Legal Counsel,

Department of Justice 373

Watson, H. Lee, Los Angeles, Calif 274

Prepared statement 274

Zener, Robert V., General Counsel, Environmental Protection Agency. 425
Additional statements —

American Nurses' Association on Administrative Rulemaking 249

American Protestant Hospital Association 244

Bevill, Hon. Tom, a Representative in Congress from the State of

Alabama 201

Breckinridge, Hon. John B,. a Representative in Congress from the

State of Kentucky 205

Brock, Hon. Bill, a U.S. Senator from the State of Tennessee 226

Cleveland, Hon. James C, a Representative in Congress from the

State of New Hampshire 201

Gradison, Hon. Willis D., Jr., a Representative in Congress from the

State of Ohio 193

Holt, Hon. Marjorie S., a Representative in Congress from the State

of Maryland 243

Ichord, Hon. Richard H., a Representative in Congress from the

State of Missouri 205

Kasten, Hon. Robert W., Jr., a Representative in Congress from the

State of Wisconsin 194

Kemp, Hon. Jack, a Representative in Congress from the State of

New York 221

Mann, Hon. James R., a Representative in Congress from the State

of South Carolina 190

Moore, Hon. W. Henson, a Representative in Congress from the

State of Louisiana 232

Nedzi, Hon. Lucien N., a Representative in Congress from the State

of Michigan 200



Page
O'Hara, Hon. James G., a Representative in Congress from the State

of Michigan, supplemental statement 458

Robinson, Hon. J. Kenneth, a Representative in Congress from the

State of Virginia 202

Roe, Hon. Robert A., a Representative in Congress from the State of

New Jersey 192

Shipley, Carl L., senior member, Shipley, Smoak & Akerman, Wash-
ington, D.C 419

Sikes, Hon. Robert L. F., a Representative in Congress from the State

of Florida 225

Sisk, Hon. B. F., a Representative in Congress from the State of

California 198

Stokes, McNeill, General Counsel of the American Subcontractors

Association 238

Thone, Charles, a Representative in Congress from the State of

Nebraska 221

Waggonner, Joe D., Jr., a Representative in Congress from the State

of Louisiana 230

Whitehurst, Hon. G. William, a Representative in Congress from the

State of Virginia 190

Additional material —

Administrative Procedures Act of 1969, Michigan, reprinted from

the Michigan Compiled Laws 325

Bell, Thomas G., executive vice president, American Health Care

Association, letter dated October 30, 1975, to Hon. Walter Flowers. 246
Bromberg, Michael D., director. National Offices, Federation of

American Hospitals, letter dated November 13, 1975, to Hon.

Walter Flowers 241

Champion, Forrest L., Jr., attorney, letter dated October 17, 1975,

to Hon. Jack Brinkley 171

Constitutionality of the Proposed "Administrative Rulemaking Con-
trol Act," by Nathaniel E. Gozansky and Frank P. Samford 151

Doody, Michael F., executive director, American Osteopathic Hospital

Association, letter dated October 21, 1975, to Hon. Walter Flowers. 233
Ford, Harold E., director. Southeastern Poultry & Egg Association .. 208
Kunkel, Paul D., Jr., chairman. Council on Legislation, American

Dental Association, letter dated December 4, 1975, to Hon. Walter

Flowers . . . 236

Michigan House Bill No. 4648 (Mar. 18, 1975) 291

Miller, Prof. Arthur S., memorandum to Subcommittee on Adminis-
trative Law and Governmental Relations 234

Processing of Proposed Administrative Rules, Joint Committee on

Administrative Rules, May 1974 297

Schabarum, Peter, Supervisor, First District, Board of Supervisors,

County of Los Angeles, letter dated October 24, 1975, to Hon.

George E. Danielson . 237

Stokes, A. P., director. Public Works Agency, County of Ventura,

Calif., letter dated December 1, 1975, to Hon. Peter W. Rodino, Jr. 250



CONGRESSIONAL REVIEW OF ADMINISTRATIVE

RULEMAKING



TITESDAY, OCTOBER 21, 1975

House of Representatives,
Subcommittee on Administrative Law and

Governmental Relations of the

CJommittee on the Judiciary,

Washington, D.C.

The subcommittee met, pursuant to reces, at 10:15 a.m. in room
2141, Raybum House Office Building, Hon. Walter Flowers [chair-
man of the subcommittee] presiding.

Present : Representatives Flowers, Danielson, Mazzoli, Pattison,
Moorhead, and Kindness.

Also present: William P. Shattuck, counsel; Jay T. Tumipseed,
assistant counsel; Alan F. Coffey, Jr., associate counsel; and David
Minge, consultant to the subcommittee.

Mr. Flowers. We will call this meeting to order. The bills scheduled
for hearing today would provide authority to the Congress to review
rules and regulations promulgated by regulatory agencies. We express
our appreciation to our distinguished colleague from Greorgia, Mr.
Levitas who was one of the primary sponsors of legislation in this
field. The other principal sponsor is our colleague from California,
Mr. Del Clawson, who will testify later. This legislation has some 150
of our colleagues as cosponsors of either the Levitas bill or the Clawson
bill.

This indicates the concern that our constituents across this land have
in this area. The pending bills represent efforts to improve the account-
ability of the administrative agencies to elected representatives and
through them to the people of the United States.

It is one of the techniques that might be employed to extend con-
gressional oversight of administrative agencies and regulatory agen-
cies. Presently Congress has no direct review of the multitude of ex-
ecutive branch regulations other than our general power to enact
legislation.

This power, as used during the last session of Congress, is exempli-
fied by the instance when the Congress overrode the interlock require-
ment that had been promulgated by the National Highway Traffic
Safety Administration.

Some have objected that this is a cumbersome method. I am advised
that there are currently some 125 areas in which the law stipulates
some form of special congressional review for a particular program. I
intend to raise the question with the sponsors at some point here this
morning about whether or not their proposals would be in addition to

(1)



or would override the other provisions for congressional oversight that
are written into the basic law^ of some of the agencies.

This hearing represents one of the first hearings in the Congress on
the proposal that executive branch rules ought to be subject to legis-
lative i-eviews as a general mattter.

I am sure the views expressed today and later this week and next
week in the hearings that we have scheduled will be very helpful in
enabling the subcommittee to act on this very, very important subject.

I know that my colleagues here, Mr. Moorhead and Mr. Danielson,
may have comments they would like to make. I will yield to Mr.
Moorhead.

Mr. Moorhead. Thank you, Mr. Chairman. I am pleased that our
subcommittee is holding this series of hearings. As a Member of Con-
gress, we have a responsibility to oversee the bureaucracy and how^
they administer the laws and programs w^e enact.

All too often Congrass has failed to do a detailed and effective job.
Most of us know that administrative regulations published in the
Federal Register are far reaching and have a tremendous effect on the
American people. Oftentimes they go much further than the Congress
has ever expected or wanted them to.

I know that there is hardly a week that goes by that I don't receive
a large number of letters from people in my district complaining
about overreaching bureaucracies and about the ways the Federal regu-
lations are affecting their businesses and their lives.

The bills we are considering here this morning give us a format for
discussing how we can deal with this problem. Some of the individual
State legislatures have initiated procedures already for reviewing ad-
ministrative rules.

Perhaps it is time the Congress did the same thing. As a cosponsor
of the legislation offered by my good friend Del Clawson, I am sym-
pathetic to the legislative veto concept. I hope that these hearings will
answer that question.

Mr. Flowers. Thank you.

[Copies of the bills referred to follow :]



94th coxgrp:ss ff 'wy o /^ r* O



IN THE HOUSE OF EEPEESENTATIVES

February 25, 1975

Mr. Levitas introduced the folloAving bill; which was referred to the Com-
mittees on the Judiciary and Rules



A BILL

To permit either House of Congress to disapprove certain rules
proposed by executive agencies.

2 Be it enacted by the Senate and House of Representa-

2 lives of the United States of America in Congress assembled,

3 That this Act may be cited as the "Administrative Eulemak-

4 ing Control Act".

5 Sec. 2. The Congress finds that —

Q (1) the executive agencies through rulemaking

rj powers have pronmlgated many rules which contain

g criminal sanctions;

9 (2) the executive agencies have often exceeded

2Q the intent of Congress in the manner in which such

^^ agencies have administered various laws; and



4



1 (3) tlie executive agencies in tlie administration

2 of an}^ law should be more responsive to the intentions

3 of CongTess in enacting such law.

4 Therefore,, it is the purpose of this Act to establish a

5 procedure whereby Congress may review certain rulemaking

6 activities of executive agencies, thereby exercising greater

7 control and oversight over the operations of such agencies.

8 Sec. 3. Section 553 of title 5,, United States . Code

9 (relating to rulemaking), is amended to read as follows:

10 "§553. Rulemaking and congressional disapproval of pro-

11 posed rules

12 ''(a) This section applies, according to the provisions

13 thereof, except the extent that there is involved —

14 ''' ( 1 ) a militar}^ or foreign affairs function of the

15 United States ; or

16 ''(2) a matter relating to agency management or

17 personnel or to pul)lic property, loans, grants, benefits,

18 or contracts.

19 "(b) General notice of proposed rulemaking shall be

20 published in the Federal Register. The notice shall include —

21 ''(1) a statement of the time, place, and nature of

22 public rulemaking proceedings ;

23 "(2) reference to the legal authority under which

24 tke rule is proposed; and



3

1 "(3) either the terms or substance of the proposed

2 rule or a description of the subjects and issues involved.

3 Except when notice or hearing is required by statute, this

4 subsection does not appl}' —

5 " (A) to interpretative rules, general statements of

6 pohcy, or rules of agency organization, procedure, or

7 practice; or

8 "(^) when the agency for good cause finds (and

9 incorporates the finding and a brief statement of reasons

10 therefor in the rules issued) that notice and public pro-

11 cedure thereon are impracticable, unnecessary, or con-

12 trary to the public interest.

13 ''(c) After notice required by this section, the agency

14 shall give interested persons an opportunity to participate in

15 the rulemaking through submission of written data, views,

16 or argmiients with or without opportunity for oral presenta-

17 tion. After consideration of the relevant matter presented,

18 the agency shall incorporate in the rules adopted a concise

19 general statement of their basis and purpose. When rules

20 are required by statute to be made on the record after oppor-

21 tunity for an agency hearing, sections 556 and 557 of this

22 title apply instead of this subsection.

23 ''(d) Except where subsections (f) and (g) apply,

24 the required publication or service of a substantive rule shall



6



1 be made not less than thirty days before its effective date,

2 except —

3 '' (1) a substantive rule which grants or recognizes

4 an exemption or relieves a restriction;

5 "(2) interpretative rules and statements of policy;

6 or

7 " (3) as otherwise provided by the agency for good

8 cause found and puulished with the rule.

9 " {^) Each agency shaU give an interested person the

10 right to petition for the issuance, amendment, or repeal of a

11 rule. • ,

12 " (f ) A rule shall take effect only in the manner pio-

13 vided m subsection (g) if it is a rule —

14 " (1) with respect to which general notice of a pro-

15 posed rulemaking is required to ))e published by this

16 section ; and

17 " (^) the violation of which subjects the person in

18 violation to a criminal penalty.

19 ''(g) (1) (A) Except as provided in subparagraphs

20 (B) and (D), a rule described in subsection (f) may take

21 effect (i) only if published (with an identification number)

22 in the Federal Register, (ii) only after the expiration of the

23 first period of thirty calendar days of continuous session of

24 Congress after the date on which the rule was published,

25 and (iii) only if, between the date of publication and the



7
5

1 end of tlic thirty-day period, neither House, without referral

2 of such matter to the appropriate committee, passes a resolu-

3 tion stating in substance that that House does not favor the

4 rule.

5 " {^) Notwithstanding the provisions of subparagraph

6 (A) of this paragraph, whenever a resolution, stating in

7 substance that a House does not favor a rule described in

8 paragraph (f ) , is referred to a committee of either House,

9 such rule may take effect (i) only after the expiration of the

10 first period of sixty days of continuous session of Congress

11 after the date on which the rule was published, and (ii) only

12 if, between the date of pubhcation and the end of the sixty-

13 day period, neither House passes such resolution.

14 "(C) For the purpose of subparagraph (A) of this

15 paragraph —

16 " (i) continuity of session is broken only by an

17 adjournment of Congress sine die; and

18 " (ii) the days on which either House is not in ses-

19 sion because of an adjournment of more than three days

20 to a day certain are excluded in the computation of the

21 thirty-day period.

22 '^ {^) Under provisions contained in a rule, a provi-

23 sion of the rule may be effective at a time later than the

24 date on which the mle otherwise is effective.



8
6

1 ''(2) Paragraphs (3) through (8) of this subsection

2 are enacted by Congress —

3 "(^) ^s an exercise of the rulemaking power of

4 the Senate and the House of Representatives, respeo-

5 tively, and as such they are deemed a part of the mles

6 of each House, respectively, but applicable only with

7 respect to the procedure to be followed in that House in

8 the case of resolutions described by paragraph (o) of

9 this subsection; and they supersede other rules only to

10 the extent that they are inconsistent therewith; and

11 "(B) "^^ith full recognition of the constitutional right

12 of either House to change the rules (so far as relating

13 to the procedure of that House) at any time, in the same

14 manner and to the same extent as in the case of any

15 other rule of that House.

16 ''(3) For the purpose of paragraphs (2) through (8)

17 of this subsection, 'resolution' means only a resolution of

18 either House of Congress, the matter after the resolving

19 clause of which is as follows: 'That the does not

20 favor the rule numbered published in the Federal Eeg-

21 is tor on , 19 .', the first blank space therein

22 being filled with the name of the resolving House and the

23 other blank spaces therein being appropriately filled; but

24 does not include a resolution which specifies more than one

25 rule.



9



1 "(4) Upon introduction of a resolution with respect to

2 a rule, it shall be in order at any time thereafter to move the

3 referral of such resolution to a committee pursuant to para-

4 graph (5) or to move the adoption of such resolution. Each

5 such motion is highly privileged and is not debatable. An

6 amendment to such motion is not in order, and it is not in

7 order to move to reconsider the vote by which the motion is

8 agreed to or disagreed to. In the case of a motion to adopt

9 a resolution, the procedures set forth in paragraphs (7) (B)

10 and (8) (A) and (B) shall apply.

11 ''(5) After passage by a majority vote of a motion to

12 refer a resolution to a committee, such resolution shall be

13 referred to such committee (and all resolutions with respect

14 to the same rule shall be referred to the same committee)

15 by the President of the Senate or the Speaker of the House

16 of Eepresentatives, as the case may be.

17 " {Q) (A) If the committee to which a resolution with

18 respect to a rule has been referred has not reported it at

19 the end of ten calendar days after its introduction, it is in

20 order to move either to discharge the committee from further

21 consideration of the resolution or to discharge the committee

22 from further consideration of any other resolution with re-

23 spect to the rule which has been referred to the committee.

24 ''(B) A motion to discharge may be made only by an

25 individual favoring the resolution, is highly privileged (ex-



10
8

1 cept that it may not be made after the committee has re-

2 ported a resokition with respect to the same rule) , and debate

3 thereon shall be limited to not more than one hour, to be

4 divided equally between those favoring and those opposing

5 the resolution. An amendment to the motion is not in order,

6 and it is not in order to move to reconsider the vote by

7 which the motion is agreed to or disagreed to.

8 "(C) If the motion to discharge is agreed to or dis-

9 agreed to, the motion may not he renewed, nor may another

10 motion to discharge the committee be made with respect

11 to any other resolution with respect to the same rule.

12 "(7) (A) When the committee has reported, or has

13 been discharged from further consideration of, a resolution

14 with respect to a rule, it is at any time thereafter in order

15 (even though a previous motion to the same effect has been

16 disagi'eed to) to move to proceed to the consideration of the

17 resolution. The motion is highly privileged and is not de-

18 batable. An amendment to the motion is not in order, and

19 it is not in order to move to reconsider the vote by which

20 the motion is agreed to or disagreed to.

21 "(B) Debate on the resolution shall be hmited to not

22 more than ten hours, which shall be divided equally be-

23 tween those favoring and those opposing the resolution. A

24 motion further to limit debate is not debatable. An amend-

25 ment to, or motion to recommit, the resolution Is not in order.



11

9

1 and it is not in order to move to reconsider the vote by which

2 the resokition is agreed to or disagreed to.

3 "(8) (^) Motions to postpone, made with respect to

4 the discharge from committee, or the consideration of, a

5 resokition with respect to a rule, and motions to proceed to
G the consideration of other business, shall be decided without



Online LibraryUnited States. Congress. House. Committee on the JCongressional review of administrative rulemaking : hearings before the Subcommittee on Administrative Law and Governmental Relations of the Committee on the Judiciary, House of Representatives, Ninety-fourth Congress, first session, on H.R. 3658, H.R. 8231, and related bills ... → online text (page 1 of 63)