[Federal Register Volume 59, Number 21 (Tuesday, February 1, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-2225]
[[Page Unknown]]
[Federal Register: February 1, 1994]
VOL. 59, NO. 21
Tuesday, February 1, 1994
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ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
Adoption of Recommendations and Statement Regarding
Administrative Practice and Procedure
AGENCY: Administrative Conference of the United States.
ACTION: Notice.
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SUMMARY: The Administrative Conference of the United States (ACUS)
adopted two recommendations its Forty-Ninth Plenary Session. The
recommendations concerning improving the environment for agency
rulemaking and procedures for regulation of pesticides. The Conference
also adopted one formal statement at the Plenary Session on the right
of persons to consult with counsel in agency investigations.
FOR FURTHER INFORMATION: Renee Barnow, 202-254-7020.
SUPPLEMENTARY INFORMATION: The Administrative Conference of the United
States was established by the Administrative Conference Act, 5 U.S.C.
591-596. The Conference studies the efficiency, adequacy, and fairness
of the administrative procedures used by federal agencies in carrying
out administrative programs, and makes recommendations for improvements
to the agencies, collectively or individually, and to the President,
Congress, and the Judicial Conference of the United States (5 U.S.C.
594(1)). At its Forty-Ninth Plenary Session, held December 9-10, 1993,
the Assembly of the Administrative Conference of the United States
adopted two recommendations and one formal statement.
Recommendation 93-4, Improving the Environment for Agency
Rulemaking, concerns the federal agency rulemaking process, which has
become both increasingly less effective and more time-consuming. To
improve the environment for agency rulemaking, the Conference
recommends specific steps that the President, Congress, and the courts
should take to eliminate undue burdens on agency legislative
rulemaking.
With regard to presidential oversight, ACUS recommends that
presidential oversight and review be reserved for the most important
rules and that the agencies be given clear policy guidance in a
directive, approved by the President, specifying what is required. In
addition, the reviewing or oversight entity should avoid, to the extent
possible, extensive delays in the rulemaking process. The review
process itself should be open to public scrutiny, following guidelines
previously developed by the Administrative Conference. With regard to
legislatively-imposed constraints, ACUS recommends that Congress should
review and rationalize legislatively-mandated rulemaking procedures,
and specific proposals are offered for Congress' consideration. ACUS
recommends that courts should be sensitive not to require greater
justification for rules than necessary. It also advises that a
``reasoned statement'' that explains the basis and purpose of the rule
and addresses significant issues raised in public comments should be
adequate for review. Finally, recognizing that rulemaking is not just a
product of external constraints, ACUS recommends a number of steps
agency managers can take to improve their internal processes.
Recommendation 93-5, Procedures for Regulation of Pesticides, calls
for the adoption of a more coordinated and strategic procedural
framework for the Federal Insecticide, Fungicide, and Rodenticide Act
(``FIFRA'') involving the creation of multiple and reinforcing
incentives for regulatory compliance by registrants, for timely and
accurate decisionmaking by EPA, and for effective public participation.
The Conference recommends that EPA promulgate and communicate clear
data standards and guidance on the data expected from registrants. ACUS
also recommends that Congress authorize EPA to levy administrative
civil money penalties upon registrants submitting data that fail to
meet previously announced, clear standards. With regard to suspension
and cancellation proceedings, which involve scientific data concerning
risks and benefits, ACUS recommends use of informal procedures by which
EPA gives registrants detailed reasons for the agency's actions and
then provides registrants with sufficient time to file responsive
written comments and supporting documentation. However, an opportunity
should be provided to allow affected parties to show cause why oral
testimony or cross-examination is justified. Among other specific
recommendations, ACUS urges Congress to consider giving EPA the
authority to use informal procedures to order the phase-down of
existing pesticides when there are safer, effective products or
practices available.
Statement No. 16, Right to Consult with Counsel in Agency
Investigations, addresses the procedures that govern the relationship
between a federal agency and persons compelled to appear before the
agency in investigations that may lead to civil or criminal
prosecution. While addressing certain issues raised in these
investigations, the Conference concluded that a uniform set of
recommendations concerning agency procedures was not appropriate given
the differences among federal agencies in the roles of investigators
and the methods by which witnesses or parties appear before agencies.
The full texts of the recommendations and statement are set out in
the Appendix below. The recommendations will be transmitted to the
affected agencies and, if so directed, to the Congress of the United
States. The Administrative Conference has advisory powers only, and the
decision on whether to implement the recommendations must be made by
each body to which the various recommendations are directed.
Recommendations and statements of the Administrative Conference are
published in full text in the Federal Register. In past years
Conference recommendations and statements of continuing interest were
also published in full text in the Code of Federal Regulations (1 CFR
parts 305 and 310). Budget constraints have required a suspension of
this practice in 1994. However, a complete listing of past
recommendations and statements are published in the Code of Federal
Regulations. Copies of all past Conference recommendations and
statements, and the research reports on which they are based, may be
obtained from the Office of the Chairman of the Administrative
Conference. As explained at 1 CFR 304.2, requests for single copies of
such documents will be filed at no charge to the extent that supplies
on hand permit.
The transcript of the Plenary Session is available for public
inspection at the Conference's offices at Suite 500, 2120 L Street NW.,
Washington, DC.
Dated: January 25, 1994.
Jeffrey S. Lubbers,
Research Director.
Appendix--Recommendations of the Administrative Conference of the
United States
The following recommendations were adopted by the Assembly of the
Administrative Conference on December 9 and 10, 1993, respectively:
Recommendation 93-4 Improving the Environment for Agency
Rulemaking
Informed observers generally agree that the rulemaking process has
become both increasingly less effective and more time-consuming. The
Administrative Procedure Act does not reflect many of the current
realities of rulemaking. The APA's cumbersome ``formal rulemaking''
procedures are rarely used except in some adjudicative-type rate
proceedings. Meanwhile, the APA's simple ``informal rulemaking''
procedures (set forth in 5 U.S.C. Sec. 553) have been overlain with an
increasing number of constraints: Outside constraints imposed by
Congress, the President, and the courts, and internal constraints
arising from increasingly complex agency management of the rulemaking
process.1 As a result, many federal agencies, faced with
unsatisfactory rulemaking accomplishments in recent years, have turned
to alternatives such as less formal policy statements or adjudicative
orders to achieve regulatory compliance.2
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\1\ See generally McGarity, Some Thoughts on ``Deossifying'' the
Rulemaking Process, 41 Duke L. J. 1385 (1991).
\2\See Conference Recommendation 92-2, ``Agency Policy
Statements,'' 1 CFR 305.92-2 (1993), which distinguished
``legislative'' rules, normally promulgated through notice-and-
comment procedures, from interpretive rules and policy statements,
which are exempt from such procedures. The present recommendation
addresses legislative rulemaking.
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The Conference believes that the environment for agency legislative
rulemaking can be improved. This recommendation sets out a coordinated
framework of proposals aimed at promoting efficient and effective
rulemaking by addressing constraints on the current process that derive
from a variety of sources. We present an integrated approach for
improving the rulemaking environment in order to relieve agencies of
unnecessary pressures and disincentives relating to rulemaking. We also
identify desirable revisions of section 553 relating to legislative
rulemaking. In doing so, this recommendation both presents new
proposals and incorporates previous Conference recommendations.
Presidential Constraints
We continue to support presidential coordination of agency
policymaking as beneficial and necessary.3 We are concerned,
however, that, unless properly focused, this additional review may
impose unnecessary costs. All recent presidents have undertaken some
level of review and coordination of agency rulemaking. Presidential
review of rules, as undertaken under various executive orders applied
by the Office of Management and Budget and other White House entities,
has often required agencies to submit nearly all proposed and final
rules to a review process in which the rules are screened and analyzed
for consistency with presidential objectives. Some of these objectives
have been incorporated into analytical requirements found in separate
executive orders.4 This screening process can unduly slow the
entire system of rulemaking; it can inhibit the growth of the promising
consensus-based alternative of negotiated rulemaking;5 and it can
create undesirable tensions between the reviewing entities and agency
policymakers. While these analytical emphases can be rationalized
individually, in the aggregate, they can result in redundant
requirements, boilerplate-laden documents, circumvention, delays, and
clutter in the Federal Register. Although specific presidential review
policies have varied among Administrations, these recommendations set
forth principles that the Conference believes generally should govern
presidential review of rules.
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\3\See Conference Recommendation 88-9, ``Presidential Review of
Agency Rulemaking'' 1 CFR 305.88-9 (1993) (applying Presidential
oversight to both executive branch and independent agencies).
\4\Among the mandates reflected in these executive orders are
requirements that agency rulemakers include cost-benefit estimates
and analyses of the proposed and final rule's impact on federalism,
family values, and future litigation, of whether it effects a
``regulatory taking,'' and of other matters. The Conference of
course takes no position on the merits of the values underlying
these executive orders.
\5\See Conference Recommendations 82-4 and 85-5, ``Procedures
for Negotiating Proposed Regulations,'' 1 CFR 305.82-4, 305.85-5
(1993);'' Negotiated Rulemaking Act of 1990, 5 U.S.C. 561-69.
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We therefore recommend that presidential oversight and review be
reserved for the most important rules and that the agencies be given
clear policy guidance in a directive, approved by the President,
specifying what is required. In addition, the reviewing or oversight
entity should avoid, to the extent possible, extensive delays in the
rulemaking process. The review process itself should be open to public
scrutiny--following guidelines previously developed by the
Administrative Conference.6 The President's policy should
encourage planning and coordination of regulatory initiatives, and
early dialogue between agencies and the reviewing entity. To this end,
the concept of a unified agenda of regulations is a useful tool and
should be preserved. We also believe that additional non-APA analytical
requirements should be kept to a minimum. The cumulative impact of such
requirements on the rulemaking process should be considered before
existing requirements are continued or additional ones imposed. We also
believe it is useful to periodically reassess the continued viability
and relevance of the various presidential directives.7
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\6\See Conference Recommendation 88-9, ``Presidential Review of
Agency Rulemaking,'' 1 CFR 305.88-9 (1993) at 4.
\7\While the most recent executive order of presidential review
of rules generally reflects the views set forth in this
recommendation, see Executive Order 12866, 58 Fed. Reg. 51735
(1993), the Conference takes no position on the specifics of that
order.
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Legislative Constraints
Congress should similarly review and rationalize legislatively-
mandated rulemaking procedures. Specifically, we recommend that it
refrain, as it generally has done since the 1970s, from imposing
program-specific rulemaking requirements that go beyond the APA's basic
notice-and-comment procedures.8 Statutory ``on-the-record'' and
``hybrid'' rulemaking provisions that require adjudicative fact-finding
techniques such as cross-examination, or more stringent provisions for
judicial review (in particular, use of the ``substantial evidence''
test instead of the normal ``arbitrary and capricious'' test), can be
unnecessarily burdensome or confusing and should be repealed.9
Although additional procedures can sometimes be beneficial--see, e.g.,
Section 307 of the Clean Air Act (providing additional safeguards for
rulemaking with significant economic and competitive effects)10--
they should be imposed only after careful review and attention by
Congress to possible unintended consequences. Otherwise, such additions
generally should be left to the discretion of individual
agencies.11
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\8\See Conference Recommendation 76-3, ``Procedures in Addition
to Notice and the Opportunity to Comment in Informal Rulemaking,'' 1
CFR 305.76-3 (1993).
\9\See Conference Recommendation 80-1, ``Trade Regulation
Rulemaking Under the Magnuson-Moss Warranty--Federal Trade
Commission Improvement Act,'' 1 CFR 305.80-1 (1993).
\1\042 U.S.C. 7607.
\1\1See Conference Recommendation 76-3, ``Procedures in Addition
to Notice and the Opportunity for Comment in Informal Rulemaking,''
1 CFR 305.76-3 (1993).
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Similarly, legislatively-imposed time limits on rulemaking, while
understandable, can be unrealistic, resulting in either hastily-imposed
rules or missed deadlines that undermine respect for the rulemaking
process.12 Legislative deadlines backed by statutory or regulatory
``hammers'' (mandating, for example, that the proposed rule or some
other policy change13 automatically take effect upon expiration of
the deadline) are particularly undesirable and often counter-
productive;14 they are generally less desirable than the
alternative of judicial enforcement of deadlines.15
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\1\2See Conference Recommendation 78-3, ``Time Limits on Agency
Action,'' 1 CFR 305.78-3 (1993).
\1\3See, e.g., Conference Recommendation 90-8, ``Rulemaking and
Policymaking in the Medicaid Program,'' 1 CFR 305.90-8 (1993).
\1\4Where the ``hammer'' applied because of a failure to meet a
deadline is that a proposed rule becomes effective, the anomalous
result is that a policy that has withstood no public airing will be
implemented.
\1\5Courts should continue, where appropriate, to consider
whether agency action in a rulemaking is ``unreasonably delayed.''
See 5 U.S.C. 706(1); Telecommunications Research and Action Center
v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984).
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Finally, legislation ancillary to the APA that creates additional
rulemaking impediments should be reconsidered. Statutes such as the
Regulatory Flexibility Act, which requires a special analysis of
virtually all rules' effects on small business, may have laudable
intentions, but their requirements are often both too broadly
applicable and not sufficiently effective in achieving their goals. If
such requirements are imposed, Congress should focus them more
narrowly, by, for example, confining their application to significant
rules or particular categories of rules.
Judicial Constraints
Other constraints on rulemaking that warrant similar
reconsideration have been imposed through judicial review. The APA, in
section 706, provides that agency rules may be set aside if they are
``arbitrary or capricious,'' represent an ``abuse of discretion,'' or
are ``otherwise not in accordance with law.'' The evolving scope of
judicial review of agency rules, along with the timing of much such
review at the preenforcement stage, has contributed to what is
sometimes an overly intrusive inquiry. This, in turn, has led agencies
to take defensive measures against such review. While some tension is
an inevitable adjunct of the process of judicial review, we believe
that steps can be taken to lessen some of the burdens without loss of
effective outside scrutiny of agency rules.
The tendency of some courts to require extra-APA procedures in
rulemaking was arrested by the Supreme Court's Vermont Yankee decision
in 1978.16 Nevertheless, while the prevailing judicial
interpretation of the arbitrary-and-capricious standard of review
(which became known as the ``hard look doctrine'') has promoted
reasoned decisionmaking, courts have not infrequently remanded rules on
the basis of an agency's failure to respond adequately to comments,
consider relevant factors, or explain fully the bases for its rule.
Courts should be sensitive not to require greater justification for
rules than necessary; a reasoned statement that explains the basis and
purpose of the rule and addresses significant issues raised in public
comments should be adequate.
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\1\6Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519
(1978).
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Preenforcement review, expanded by the Supreme Court in the 1967
Abbott Laboratories cases,17 endorsed by the Conference in various
recommendations,18 and codified in numerous rulemaking programs,
has the virtue of settling legal issues early and definitively. When
overused, however, preenforcement review can have the negative effect
of inducing precautionary challenges to most rules and the raising of
as many objections to a rule as possible, including somewhat
speculative challenges pertaining to the rule's potential application.
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\1\7Abbott Laboratories v. Gardner, 387 U.S. 136 (1967); Toilet
Goods Ass'n v. Gardner, 387 U.S. 158 (1967).
\1\8See Conference Recommendation 74-4, ``Preenforcement
Judicial Review of Rules of General Applicability,'' 1 CFR 305.74-4
(1993); Conference Recommendation 91-5, ``Facilitating the Use of
Rulemaking by the National Labor Relations Board,'' 1 CFR 305.91-5
(1993).
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Under the Abbott Laboratories standard, challenges to a rule are
permitted where issues are appropriate for judicial review and where
the impact on a challenger is direct and immediate. The Conference
believes that the Abbott Laboratories standard strikes a sensible
balance, and that preenforcement challenges generally are appropriate
where the administrative record provides a sufficient basis for the
court to resolve the issues before it. Thus, a preenforcement challenge
to a rule based on the procedures used in the rulemaking should
normally be permitted. Preenforcement review that involves a facial
challenge to a rule's substantive validity (whether because of a
conflict with a statute or the Constitution, or because of the
inadequacy of the facts or reasoning on which it is based) should also
generally be heard.19 In contrast, challenges to a rule because it
might be applied in a particular way should normally be deferred until
the rule has actually been applied.
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\1\9A challenge based on the facial invalidity of the rule, in
this context, would normally be directed at a requirement or course
of action to which the agency has clearly committed itself.
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Although prompt resolution of legal issues is to be encouraged,
Congress should be cautious in coupling mandated time-limited
preenforcement review with preclusion of review at the enforcement
stage. Such time-limited review should be provided for only in the
situations and conditions specified in Recommendation 82-7.20
Where Congress does set time limits for preenforcement review, it
should, in the interests of consistency, generally specify that
preenforcement review should occur within 90 days of a rule's issuance.
Current statutory specifications vary. There does not seem to be any
reason for variation that outweighs the benefits of uniformity in this
context.
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\2\0Recommendation 82-7, ``Judicial Review of Rules in
Enforcement Proceedings,'' 1 CFR 305.82-7 (1993), sets out criteria
for when judicial review should be limited at the enforcement stage,
and what kinds of issues should remain reviewable at that stage.
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Congress should also amend any existing statutes that mandate use
of the ``substantial evidence'' test for reviewing legislative rules,
by replacing it with the ``arbitrary and capricious'' test. The
occasional introduction of the substantial evidence test in the
rulemaking context has created unnecessary confusion; some courts apply
it in a manner identical to that of the ``arbitrary and capricious''
test; others believe that it sets a higher standard. The Conference
believes that the arbitrary and capricious test provides sufficient
review in the informal rulemaking context.
The intensity of judicial review directly affects the rulemaking
process. For example, the scope of review of agency statutory
interpretations is governed by the deferential Chevron test, which
requires affirmance if the agency's interpretation of an ambiguous
statute is permissible.21 On the other hand, when reviewing the
reasonableness of an agency's policy and factual justifications for its
rules, courts apply the stricter ``hard look'' doctrine.22
Deferential review of the legal issue of statutory interpretation,
coupled with the rigorous review of a rule's factual and policy
underpinnings that the ``hard look'' doctrine specifies, has been
criticized as anomalous. The Conference believes, however, that the
review standards can be harmonized by looking beyond the labels. That
is, under both of these doctrines, courts are required to determine
independently the limits of the agency's statutory authority and
whether the factors the agency took into account in formulating the
rule were permissible. Following that determination, courts properly
defer to an agency's permissible reading of its statute and to its
choice of inferences from the facts in making policy decisions. Courts
would help make their review more consistent and predictable if they
articulated more clearly this two-step approach. Both the Chevron and
``hard look'' doctrines would then be understood as including a
searching review of the range of an agency's legally permissible
choices (statutory, policy, and factual), combined with, in each
instance, deference to the agency's reasonable selection among such
choices, once the alternatives are determined to be within the
permissible range.
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\2\1Chevron USA Inc. v. NRDC, 467 U.S. 837 (1984).
\2\2Motor Vehicle Manufacturers Ass'n v. State Farm Mutual
Automobile Insurance Co., 463 U.S. 29 (1983) (State Farm).
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Finally, in order to prevent additional litigation, courts should
be encouraged to address certain issues that arise in many if not most
reviews of rules. Reviewing courts should, for example, specify, to the
extent feasible, which portions of the rule, if any, are to be set
aside, vacated, stayed or otherwise affected by the decision in the
case. They should seek to ensure that portions of a rule unaffected by
a finding of illegality remain in effect, unless the rule expressly or
impliedly indicates that the rule is inseverable. A reviewing court
should also consider the extent to which its mandate will apply
retroactively. In considering the effect to be given to its decision,
the court should weigh the impact of the decision on parties not before
the court, and recognize their interest in being heard or adequately
represented prior to any ruling that adversely affects them.
Amendment of the APA
As we approach the fiftieth anniversary of the APA, some of its
rulemaking provisions need to be updated. Section 553(c), which does
not now state a length of time for the comment period, should be
amended to specify that a comment period of ``no fewer than least 30
days'' be provided (although a good cause exception for shorter periods
should be incorporated). This would relieve agencies of the need to
justify comment periods that were 30 days or longer. The thirty-day
period is intended as a minimum, not a maximum; agencies would still be
encouraged to allow longer comment periods and to leave the record open
for the receipt of late comments.23 Section 553 should also
specify that a second round of notice and comment is not required where
the final rule is the ``logical outgrowth'' of the proposed rule, thus
codifying generally accepted doctrine.24 A provision requiring
maintenance of a public rulemaking file should be incorporated into
section 553, so that those who seek access to the file are not forced
to rely on the Freedom of Information Act to obtain it.25 (The
content of such a file is discussed further below in connection with
internal agency management initiatives.)
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\2\3See Conference Statement #7, ``Views of the Administrative
Conference on Proposals Pending in Congress to Amend the Informal
Rulemaking Provisions of the Administrative Procedure Act,'' 1 CFR
310.7 (para. 2).
\2\4See South Terminal Corp. v. EPA, 504 F.2d 646, 659 (1st Cir.
1974), in which the 1st Circuit originated the ``logical outgrowth''
test. It was subsequently embraced by other circuits, particularly
the D.C. Circuit. See Shell Oil Co. v. EPA, 950 F.2d 741 (D.C. Cir.
1991); International Union, United Auto, Aerospace and Agr.
Implement Workers of America v. OSHA, 938 F.2d 1310 (D.C. Cir.
1991); American Medical Association, 887 F.2d 760 (7th Cir. 1989);
NRDC v. USEPA, 824 F.2d 1258 (1st Cir. 1987); United Steelworkers v.
Schuykill Metal Corp., 828 F.2d 314 (5th Cir. 1987); National Black
Media Coalition v. FCC, 791 F.2d 1016 (2nd Cir. 1986); Chocolate
Mfrs. Ass'n v. Block, 755 F.2d 1098 (4th Cir. 1985).
\2\5Statement #7, supra n. 23, at 4.
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In addition, the requirement in section 553(c) of a statement of
basis and purpose for the rule should be revised to require a
``reasoned statement''26 (deleting the ``conciseness'' provision),
which includes a response to significant issues raised in the public
comments.27 These changes are designed to codify the salutary
aspects of the caselaw on rulemaking, discourage insubstantial
arguments and objections on review, and stem the tendency to require
additional, more burdensome justifications.
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\2\6State Farm, supra n. 22, 463 U.S. at 57 (quoting Greater
Boston Television Corp. v, FCC, 444 F.2d 841, 852 (D.C. Cir. 1970)).
\2\7Conference Statement #7, supra n. 23, at 5.
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Another long-overdue change in the Act is elimination of section
553(a)(2)'s exemption from notice-and-comment procedures for matters
relating to ``public property, loans, grants, benefits, or contracts.''
As the Conference recognized as early as 1969, this ``proprietary
exemption'' is an anachronism.28 The exemption for ``military or
foreign affairs function[s]'' in section 553(a)(1) should be narrowed
so that all but secret aspects of those functions are open to public
comment.29
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\2\8See Conference Recommendation 69-8, ``Elimination of Certain
Exemptions From the APA Rulemaking Requirements,'' 1 CFR 305.69-8
(1993).
\2\9See Conference Recommendation 73-5, ``Elimination of the
`Military or Foreign Affairs Function' Exemption from APA Rulemaking
Requirements,'' 1 CFR 305.73-5 (1993).
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Internal Agency Management Initiatives
Rulemaking is not just a product of external constraints. The
agency's own processes for developing rules and reviewing them
internally affect the rulemaking environment. Thus, agency management
initiatives can have a significant impact on the effectiveness and
efficiency of rulemaking. The Conference recommends a number of steps
agency managers can take to improve their internal processes.
Senior agency staff should develop management strategies to set
priorities and track agency rulemaking initiatives.30 Agencies
should seek to involve the presidential oversight entity in the
rulemaking process as early as feasible, in order to reach agreement on
the significance of rules in the developmental stage, to provide
greater coordination, and to speed final oversight review. Agencies
should also review their existing systems for developing and reviewing
regulations, to determine where problems and bottlenecks are occurring.
They should seek to achieve more rapid internal clearances of proposed
and final rules, and to develop reasoned analyses31 and responses
to significant issues raised in public comments. They should also take
steps to manage the rulemaking file (and associated requests for access
to it).32 The file should, to the extent feasible, contain notices
of the rulemaking, all written33 comments submitted to the agency,
and copies or an index of all written factual material, studies, or
reports substantially relied on or seriously considered by the agency
in formulating its proposed and final rule (except insofar as
disclosure is prohibited by law). Materials substantially relied on or
seriously considered need not encompass every study, report, or other
document that the agency may have in its files or has otherwise used,
but they should include those that exerted a significant impact on the
agency's thinking, even if they represent an approach that the agency
ultimately did not accept.
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\3\0See Conference Recommendation 87-1, ``Priority Setting and
Management of Rulemaking by the Occupational Safety and Health
Administration,'' 1 CFR 305.87-1 (1993).
\3\1See Conference Recommendation 85-2, ``Agency Procedures for
Performing Regulatory Analysis of Rules, 1 CFR 305.85-2 (1993);
Conference Recommendation 88-7, ``Valuation of Human Life in
Regulatory Decisionmaking,'' 1 CFR 305.88-7 (1993).
\3\2Computerized access should be made available, preferably in
a uniform system government-wide. See Conference Recommendation 88-
10, ``Federal Agency Use of Computers in Acquiring and Releasing
Information,'' 1 CFR 305.88-5 (1993).
\3\3''Written'' includes documents in electronic form.
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Agencies should also consider innovative methods for developing and
getting public input on rules. Agencies should use advisory or
negotiated rulemaking committees where appropriate to improve the
quality and acceptability of rules.34 They should also consider
the use of ``direct final'' rulemaking where appropriate to eliminate
double review of noncontroversial rules. Direct final rulemaking
involves issuing a rule for notice and comment, with an accompanying
explanation that if the agency receives no notice during the comment
period that any person intends to file an adverse comment, the rule
will become effective 30 days (or some longer period) after the comment
period closes.
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\3\4Any government-wide policy concerning the use of advisory
committees should be consistent with their use as part of the
process of negotiated rulemaking.
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Recommendation
To improve the environment for agency legislative rulemaking, the
President, Congress, and the courts should take steps to eliminate
undue burdens on agency legislative rulemaking; Congress should update
the Administrative Procedure Act's rulemaking provisions; and agencies
should review their internal rulemaking environment and, where
appropriate, implement internal management initiatives aimed at
improving the effectiveness and efficiency of their efforts.
I. Presidential Oversight\35\ of Rulemaking
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\35\The recommendations contained in this section apply to
oversight of both executive and independent agencies. The Conference
has previously recommended that presidential review of rulemaking
apply to the independent agencies to the same extent it applies to
the rulemaking of the Executive Branch departments and agencies. See
Conference Recommendation 88-9, ``Presidential Review of Agency
Rulemaking,'' 1 CFR 305.88-9 (1993).
The term ``presidential oversight entity,'' as used herein, is
that part of the Executive Office of the President delegated
responsibility for review and oversight of agency rulemaking.
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A. The President's program for coordination and review of agency
rules should be set forth in a directive that is reviewed periodically.
The program should be sensitive to the burdens being imposed on the
rulemaking process, and implementation of the program should ensure
that it does not unduly delay or constrain rulemaking. The President
should consider the cumulative impact of existing analytical
requirements on the rulemaking process before continuing these
requirements or imposing new ones.36
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\3\6In recommending review of analytical requirements beyond
those contained in the APA, we express no position on the
substantive policies being mandated.
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B. The President's directive, as well as the explanations provided
and the procedures followed by the presidential oversight entity,
should, insofar as practicable:
1. Promote dialogue and coordination between the oversight entity
and rulemaking agencies in the early identification and selection of
rules warranting application of the review process;
2. Set forth the relevant analytical requirements that the
oversight entity should apply to agency rulemaking, and provide
interpretive guidance to assist agencies in complying with these
requirements;
3. Ensure appropriate expedition and openness in the process, in
accordance with Conference Recommendation 88-9;
4. Support a process for planning regulatory initiatives and
tracking rule development; and
5. Encourage and support agency efforts to use consensual processes
such as negotiated rulemaking.
II. Congressional Structuring of Rulemaking
A. Section 553 of title 5, United States Code, which established
the framework for legislative rulemaking, has operated most efficiently
when not encumbered by additional procedural requirements. Congress
generally should refrain from creating program-specific rulemaking
procedures or analytical requirements beyond those required by the APA.
When Congress determines that additional procedures beyond those
required by section 553 are justified by the nature of a particular
program, such procedures should be focused on identified problems and,
where possible, adopted incrementally or after experimentation.37
In addition, Congress should repeal formal (``on-the-record'') or other
adjudicative fact-finding procedures in rulemaking in any existing
statutes mandating such procedures.38
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\3\7See, for example, the development of more specific, but not
necessarily more burdensome, procedures for EPA rulemaking that has
significant economic and competitive effects. See 42 U.S.C.
Sec. 7607 (Sec. 307 of the Clean Air Act). See also Conference
Recommendation 76-3, ``Procedures in Addition to Notice and the
Opportunity for Comment in Informal Rulemaking,'' 1 CFR 305.76-3
(1993), which encourages agency experimentation with use of oral
procedures beyond simple notice and comment in some circumstances.
\3\8Conference has recommended against the mandated use of
cross-examination and other ``adjudicative'' procedures for agency
fact-finding in rulemaking. See, e.g., Conference Recommendation 79-
1, ``Hybrid Rulemaking Procedures of the Federal Trade Commission,''
1 CFR 305.79-1 (1993). The Conference recognizes, however, that more
formal procedures may be appropriate for ratemaking based on party-
related facts. See United States v. Florida East Coast RR, 410 U.S.
224 (1973). Congress may also wish to consider whether less formal
hybrid processes may be useful in contexts currently requiring
formal rulemaking.
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B. In general, Congress should not legislate time limits on
rulemaking, but should instead rely on judicial enforcement of prompt
agency action under Sec. 706(1) of the APA.39 However, if Congress
determines that a deadline is appropriate, it also should ensure that
the agency has sufficient resources to support the required rulemaking
effort without distorting the agency's other regulatory functions. If
Congress further determines that a default rule is necessary where an
agency does not meet a deadline, it should specify the terms of that
rule and, in particular, should not impose ``regulatory hammers'' that
would cause the agency's proposed rules to take effect automatically.
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\3\9This is not a comment on the legitimacy of congressional
directives in this regard, but on their impracticality. On the other
hand, agency self-imposed deadlines are encouraged, see V(D), below.
For more detailed advice on time limits, see paragraph 5 of
Conference Recommendation 78-3, ``Time Limits on Agency Action,'' 1
CFR 305.78-3 (1993).
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C. Congress should reconsider the need for continuing statutory
analytical requirements that necessitate broadly applicable analyses or
action to address narrowly-focused issues.40 If Congress
nonetheless determines that such analytical requirements are necessary,
Congress should structure its requirements more narrowly (e.g., by
confining their application to the most significant rules or to rules
likely to be affected by the stated concern).
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\4\0See, e.g., the Regulatory Flexibility Act of 1980. The
Conference takes no position on the substantive issues the Act seeks
to address. Insofar as possible, however, such concerns are more
appropriately included in the President's oversight guidelines. See
I(B)(2) above.
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III. Timing and Scope of Judicial Review
Congress and the courts generally should be sensitive to the impact
of judicial review on agency rulemaking and should seek to simplify,
clarify, and harmonize provisions for judicial review of rules.
A. Congress and the Courts
In determining whether preenforcement challenges to rules are
appropriate, courts have traditionally evaluated ``both the fitness of
the issues for judicial decision and the hardship to the parties of
withholding its consideration.''41 Adherence to this standard
benefits both agencies and those affected by agency rules. Congress
generally should authorize and courts should allow preenforcement
challenges where the administrative record is a sufficient basis for
resolving the issues. Thus, preenforcement challenges to a rule based
on the procedures used in the rulemaking or on the asserted substantive
invalidity of the rule, however it would be applied, should normally be
permitted. Claims of substantive invalidity would include facial
challenges based on statutory or constitutional grounds, or asserting
the inadequacy of the facts or reasoning underlying the rule.
Challenges to a rule on the basis that the rule might be applied in a
particular way should normally be deferred until the application seems
likely or has occurred.
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\4\1Abbott Laboratories v. Gardner, supra n. 17, 387 U.S. at
149.
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B. Congress
1. Congress should be cautious in mandating time-limited
preenforcement review coupled with preclusion of review at the
enforcement stage, and should rely on time limits only in the
situations and conditions specified in Recommendation 82-7.42
Congressional time limits on preenforcement review should be understood
to bar later challenges in the enforcement context only to the extent
specified by Congress. Where Congress mandates a time limit on
preenforcement review, it generally should specify that such review be
requested within 90 days of the issuance of the rule.43 It should
also provide that preenforcement review cases be directly reviewable in
the courts of appeals, and that a stay or partial stay of the rule's
effectiveness ordinarily be issued only on the demonstration of
likelihood of success on the merits and the prospect of significant
private harm if the rule is permitted to take effect.
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\4\2See Conference Recommendation 82-7, ``Judicial Review of
Rules in Enforcement Proceedings,'' 1 CFR 305.82-7 (1993).
\4\3Congress should likewise reevaluate existing statutes for
conformity with this approach.
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2. The standards set out in Sec. 706(2)(A) of the APA's judicial
review provisions should apply in all cases involving review of rules.
Specifically, Congress should not provide for the use of the
``substantial evidence'' test for agency rules. It should conform
existing statutes to this standard by deleting the use of the
``substantial evidence'' test for review of agency rules.
C. Courts
1. In articulating the doctrines used in the judicial review of
rulemaking, reviewing courts should more clearly harmonize the
deferential Chevron doctrine, applied in reviewing agency
interpretation of its statutory authority, with the ``hard look''
doctrine, used in examining an agency's justification for its rule.
Courts, in applying these doctrines, should recognize that both the
Chevron and ``hard look'' tests call for a searching review of the
range of factors or permissible choices that may be considered by the
agency, and require deference to agency application of those factors
once they are shown to be legally appropriate.
2. When reviewing an agency's explanation for its rule, courts
should consider the context of the entire proceeding and concern
themselves principally with whether the agency's overall explanation
and analysis is reasonable, including its response to the significant
issues raised in public comments.
3. In reviewing challenges to agency rules, courts should, to the
extent feasible and after taking into account the effect of the
decision on affected persons not before the court, consider: (a)
Whether any portion of a rule unaffected by a finding of illegality
should remain in full force and effect; (b) which portions of the
challenged rule, if any, are to be set aside, vacated, stayed, or
otherwise affected by the court's decision in a case; and (c) the
extent to which the court's mandate should apply retroactively.
4. Courts should continue, where appropriate, to consider whether
agency action in a rulemaking is ``unreasonably delayed.''44
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\4\4See n. 15, 39, supra.
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IV. Amendments to the APA's Legislative Rulemaking Provisions
Congress should update the APA and eliminate outmoded provisions.
It should codify court decisions that have increased the effectiveness
of public participation in the rulemaking process. In particular,
Congress should consider amending section 553 of the APA to:
A. Eliminate the exemption (Sec. 553(a)(2)) for rules relating to
public property, loans, grants, benefits or contracts, and delete the
exemption (Sec. 553(a)(1)) of military and foreign affairs matters,
except for secret matters;45
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\4\5See Conference Recommendation 69-8, ``Elimination of Certain
Exemptions From the APA Rulemaking Requirements,'' 1 CFR 305.69-8
(1993), and Conference Recommendation 73-5, ``Elimination of the
`Military or Foreign Affairs Function' Exemption from APA Rulemaking
Requirements,'' 1 CFR 305.73-5 (1993). The latter recommendation
urged eliminating the APA's categorical exemption for matters
pertaining to the military or foreign affairs function. It does
recognize, however, that a modified exemption may be appropriate for
matters ``specifically required by executive order to be kept secret
in the interest of national defense or foreign policy.''
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B. Specify a comment period of ``no fewer than 30 days''
(Sec. 553(c)),46 provided that a good cause provision allowing
shorter comment periods or no comment period is incorporated, and
codify the doctrine holding that a second round of notice and comment
is not required if the final rule is a ``logical outgrowth'' of the
noticed proposed rule;
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\4\6The 30-day period is intended as a minimum, not a maximum.
Agencies are encouraged to use longer periods for public comment.
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C. Require establishment of a public rulemaking file beginning no
later than the date on which an agency publishes an advance notice of
proposed rulemaking or notice of proposed rulemaking, whichever is
earlier.
D. Restate the ``concise'' statement of basis and purpose
requirement (Sec. 553(c)) by codifying existing doctrine that a rule
must be supported by a ``reasoned statement,'' and that such statement
respond to the significant issues raised in public comments.
To the extent permitted by law, agencies should adopt these
proposed policies pending Congressional action.
V. Agency Management Initiatives
In order to improve their internal rulemaking environments,
agencies should develop management techniques to ensure efficient and
effective administration of rulemaking. Such techniques should include:
A. Systematically setting priorities at the highest agency levels
and tracking rulemaking initiatives, including identifying clearly who
has the authority to ensure that agency schedules and policies are
followed;
B. Coordinating with the presidential oversight entity on the
identification of rules warranting review as early in the process as is
feasible, and establishing internal review procedures at the highest
levels to ensure compliance with presidential analytical requirements;
C. Reviewing the agency's existing system for developing and
reviewing regulations, to determine where problems and bottlenecks are
occurring, and to improve and streamline the process;
D. Achieving timely internal clearances of proposed and final
rules, using, where feasible, publicly announced schedules for
particular rulemaking proceedings;
E. Managing rulemaking files, so that maximum disclosure to the
public is achieved during the comment period and so that a usable and
reliable file is available for purposes of judicial review. The
rulemaking file should, insofar as feasible, include (1) all notices
pertaining to the rulemaking, (2) copies or an index of all
written47 factual material, studies, and reports substantially
relied on or seriously considered by agency personnel in formulating
the proposed or final rule (except insofar as disclosure is prohibited
by law), (3) all written comments submitted to the agency, and (4) any
other material required by statute, executive order, or agency rule to
be made public in connection with the rulemaking.48
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\4\7``Written'' includes documents in electronic form.
\4\8See Conference Statement #7, 1 CFR 310.7 (1993), ``Views of
the Administrative Conference on Proposals Pending in Congress to
Amend the Informal Rulemaking Provisions of the Administrative
Procedure Act.''
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F. Making use, where appropriate, of negotiated rulemaking and
advisory committees;
G. Considering innovative methods for reducing the time required to
develop final rules without eliminating the opportunity for
consideration and comment;
H. Taking steps to ensure that proposed rules are acted on in a
reasonably timely manner or withdrawn; and
I. Evaluating and reconsidering existing rules and initiating
amendments and repeals where appropriate.
Recommendation 93-5 Procedures for Regulation of Pesticides.
The Environmental Protection Agency cannot accomplish its
substantive mission in regulating pesticides without change and
improvement in the Agency's regulatory procedures. The Conference
recommends the adoption of a more coordinated and strategic procedural
framework for the Federal Insecticide, Fungicide, and Rodenticide Act
(``FIFRA''). EPA needs procedures that create multiple and reinforcing
incentives for regulatory compliance by registrants, for timely and
accurate decisionmaking by EPA, and for effective public participation.
The Reregistration Process
The reregistration of existing pesticides under contemporary risk
assessment standards, and the removal of unacceptable pesticides from
the marketplace, are examples where procedures can hinder the agency's
prospects for success in its substantive mission. Reregistration of
existing pesticides, which Congress originally directed to be completed
by 1976, became sufficiently delayed so that Congress in 1988 amended
FIFRA specifically to force the completion of reregistration by 1998.
Yet subsequent delays in the reregistration process may cause EPA to
miss this congressional deadline. To some extent, the delay may reflect
the underlying difficulty and resource-intensiveness of the risk
assessment enterprise with which EPA has been charged. There are some
50,000 pesticide products that are separately formulated from 642
identified active ingredients. Although EPA has tried to expedite its
task by focusing reregistration on some 402 ``cases'' (composed of
single or related active ingredients), each case can require evaluation
of 100-150 separate studies, every one of which may pose further
questions of scientific protocol and interpretation. It may be that
EPA's Office of Pesticide Programs needs more personnel to match its
regulatory task.
Whatever the case for additional resources (a question not
addressed by the Conference), there is a more basic need for timely and
adequate data from registrants--all else in the reregistration process
depends on this. Yet the reregistration process does not now provide
sufficient procedural incentives to encourage submission of timely and
adequate data. In general, because registrants continue to market their
products during reregistration, they have little to lose by regulatory
decisions that are reached later rather than sooner. Although the 1988
FIFRA Amendments require registrants to identify data gaps, and commit
to fill them, the 1988 Amendments do not provide the agency with
sufficient tools to police tardy or inadequate data submissions.
As to tardiness, the 1988 Amendments authorized the agency to
suspend registrations of those registrants that fail to submit data.
But EPA must first provide nonsubmitters with 30-days' notice in
response to which registrants can demand a limited hearing (which must
be held within 75 days); the 1988 Amendments further provide that
registrants suspended for not submitting data can have their
registrations ``reinstated'' upon submission of the data. Some
registrants, ironically, have used these suspension procedures as a
means of obtaining penalty-free and self-awarded extensions of time. In
the 7 months between August 1991 and February 1992, for example, EPA
found it necessary to issue 70 Notices of Intent to Suspend for
nonsubmittal of data, yet in the majority of these instances (53) the
registrants merely submitted their data prior to exhausting their
procedural rights and were no worse off for having missed their
deadlines. To create an additional disincentive for untimely data
submissions it is necessary to make lateness costly to the registrant.
To this end, the Conference recommends that Congress authorize EPA to
impose civil money penalties for untimely data.
As to the adequacy of data, EPA may now have the theoretical (but
untested in court) capacity to suspend or cancel the registration of
those pesticides for which inadequate data have been submitted.
However, the more common response to inadequate data is a ``data call-
in,'' through which the agency demands that studies be redone--a source
of additional delay that the agency has identified as significant. Even
with respect to its highest priority pesticides, EPA has in the recent
past found 50 percent of studies to be either inadequate,
``upgradable'' or otherwise requiring supplementation. Although the
cost of redoing studies should provide some incentive for registrants
to ensure that their studies meet EPA's quality criteria, it does not
seem to provide a sufficient incentive. In fairness to some
registrants, there is evidence that EPA itself may be partially to
blame for the high rates of data rejection. In 1992, an internal agency
review found that misinterpretation of data requirements and poor
guidance from EPA case managers were in part responsible for the
inadequacy of data submissions. The Conference therefore recommends
that EPA promulgate and communicate clear data standards and guidance
on the data expected from registrants. To help prevent the submission
of inadequate data even after sufficiently clear agency guidance has
been given, the Conference recommends that Congress authorize EPA to
levy administrative civil money penalties upon registrants submitting
data that fail to meet previously announced standards. This will not
only create incentives for registrants to take the extra steps
necessary to ensure the adequacy of their submittals, but it will also
create incentives for the agency to make clear its expectations.
Whatever the additional tactical advantages that the agency may
gain by improving its own ability to enforce data timeliness and
adequacy, the sheer number of studies and the innumerable decisions
requiring agency discretion suggest that more global incentives are
needed to ensure that registrants themselves have a stake in timely and
adequate data. The danger is that the reregistration process now has
become, even with the best of intentions, an analytical treadmill
powered by the rhythms of data call-ins, subsequent requests for data
waivers and time extensions, submission of data that do not always meet
EPA's standards for adequacy, and further data call-ins that restart
the sequence. The Conference believes that the unique demands of the
reregistration process justify congressional consideration of a
``hammer'' provision that would legislatively impose an automatic
suspension of all ``List A'' pesticides (those high-priority pesticides
to which there is greatest human exposure) for which there are still
significant data gaps within the registrant's control, and of which the
registrant is aware--subject to a provision for a registrant to
petition for reinstatement. Such a provision would not only provide an
overarching incentive for registrants to favor the completion rather
than postponement of their data obligations, but it would also better
align the reregistration process with FIFRA's central procedural
presumption--that, in the face of uncertainty, applicants (especially
those seeking to reregister pesticides with extensive human exposure)
should bear the burden of proof in establishing that their pesticides
do not pose unreasonable risks.
Suspension and Cancellation Hearings
Apart from improvements in the reregistration process, the
Conference urges Congress to substitute a relatively informal
decisionmaking process for the formal adjudicatory hearings that
registrants can now demand in cancellation and suspension matters. In
the past, formal hearings under FIFRA have averaged 1,000 days to
complete. These hearings can directly impose on EPA significant
resource costs and can also indirectly discourage the agency from
aggressive prehearing negotiations with registrants (lest the
registrant ``take EPA to hearing''). It is not surprising that EPA has
long sought alternatives to cancellation hearings. For years, it sought
to identify problem pesticides for heightened regulatory attention in a
``Special Review'' process. There is little need for procedural
formality in these types of decisions. At issue in most cancellation
and suspension proceedings are scientific data concerning risks and
benefits, disputes over which can generally be well-ventilated when EPA
gives registrants detailed reasons for the agency's actions and then
provides registrants with sufficient time to file responsive written
comments and supporting documentation. For those cases where oral
testimony or cross-examination is justified, the benefits of more
formal procedures can be preserved by providing registrants an
opportunity to show cause why such procedures are warranted.
Accordingly, the Conference recommends that Congress pattern
cancellation and suspension proceedings on a basic notice-and-comment
model, with more formal procedures available only if a party will be
demonstrably prejudiced by the informal procedure.
Labeling and Phase-down Procedures
Although the reregistration process and adjudicatory hearings are
the most visible aspects of pesticide regulation in need of procedural
improvement, they are not the only places where procedural reform is
important. Since the late 1980's, EPA has in fact sought to reduce the
risks of pesticides through private negotiations with registrants over
label changes that impose restrictions on use. Such regulatory action
has the potential to attain interim risk-reduction quickly when
warranted by available data, without going through the cumbersome
Special Review and cancellation procedures, even when complete
reregistration may still be years away. But there are also
disadvantages to relying so heavily on private negotiations with
registrants--chief among them the lack of participation among the
various interested publics in crafting label changes. In the early
1980's, similar concern about privately negotiated Special Review and
pre-Special-Review decisions seriously undermined the agency's
credibility and slowed regulatory progress. In 1985, EPA adopted
procedures to open the door for information from, and participation by,
the public in those processes.1 The Conference recommends that EPA
adopt analogous procedures to regularize and open the agency's
negotiated label program. In addition, because label changes are
effective in reducing risk only if they are actually implemented in the
field, the Conference recommends procedures to facilitate feedback from
registrants, pesticide users, and all other interested persons on the
effectiveness or ineffectiveness of the interim risk-reduction measures
EPA has adopted. Moreover, the Conference recommends that EPA's Office
Of Pesticide Programs (OPP) establish regular channels of communication
with EPA's Office of Enforcement and Compliance Assurance to inform
that office of all label changes and of any material information
received by OPP on noncompliance with such changes.
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\1\40 CFR Part 154, Subpart B.
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The Conference also urges Congress to consider providing EPA with a
new procedural device designed to accommodate a safer pesticides
policy: The ability by informal procedures to order the phase-down of
existing pesticides when there are available for use safer, effective
pest management products or practices.2 Empowering the agency to
develop an informal phase-down mechanism would have several procedural
advantages. First, ordering the phase down of an existing pesticide on
relative risk grounds will cause less stigmatization of an existing
product than would a cancellation proceeding based on the traditional,
more absolutist ``unreasonable risk'' judgment. Second, phase-down
procedures provide for an incremental style of decisionmaking in which
EPA's reasoned judgments about comparative risk can be tested and
reevaluated without making irreversible decisions about existing
pesticides in cancellation proceedings. Finally, phase-down procedures
based on relative risk can reinforce and integrate EPA's pesticide
programs under FIFRA with other federal environmental programs.
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\2\Without taking any position on the substantive questions
involved in determining the relative safety and effectiveness of
pest control measures, the Conference notes EPA's interest in both
the present and prior presidential administrations in developing
such a substantive capability.
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Recommendation
I. Adequacy and Timeliness of Data
A. EPA should adopt, whenever possible, rules setting clear
standards for pesticide reregistration data and should communicate
those standards to registrants.
B. Congress should authorize EPA to impose administrative civil
money penalties on registrants for the failure to submit data by any
applicable deadline, or for submitting data (even if timely) that do
not comply with the data standards adopted by EPA.3
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\3\Imposition of penalties should be through formal
adjudication. See Conference Recommendation 93-1 ``Use of APA Formal
Procedures in Civil Money Penalty Proceedings,'' 58 FR 45409 (Aug.
30, 1993).
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C. Congress should consider imposing an automatic suspension of
``List A'' (high priority) pesticides for which there still remain, by
a date to be set by Congress, previously identified and significant
gaps in data within the registrant's control, and of which the
registrant is on notice. Once suspended, pesticides could be reinstated
through a petition process.
II. Informal Procedures
A. Congress should eliminate the provisions in FIFRA allowing for
formal adjudicatory hearings in proposed suspension or cancellation
actions and should provide instead an informal procedure, including
notice in the Federal Register, that informs registrants and others of
the specific grounds on which EPA bases its proposed action and that
provides a reasonable opportunity to file written comments and data.
Only if a party will be demonstrably prejudiced by the written notice-
and-comment process should the agency be required to grant the right to
introduce oral testimony or to subpoena and cross-examine witnesses.
B. Congress should consider providing EPA the authority to order a
phase down in the use of any registered pesticide through an informal
notice-and-comment procedure in which EPA considers such factors as the
relative risks and benefits of the pesticide at issue when compared
with alternative pest management products and practices.
III. Public Participation
A. EPA should regularize and open for broader public participation
its informal procedures for achieving interim risk reduction through
pesticide label changes. EPA should inform the public, through a
Federal Register notice, when it commences private label negotiations
with registrants. EPA should simultaneously open a public ``negotiation
docket'' into which interested persons may submit comments they believe
might be relevant, for consideration by EPA and the registrants during
their negotiations. If, after negotiations with registrants, EPA
proposes a label change, it should publish a notice of the proposed
change in the Federal Register and provide the public an opportunity to
file written comments. The notice should include a concise, general
statement of the proposed label's basis and purpose, including a
summary of the material aspects of the agency's negotiations with
registrants.
B. After requiring a label change, EPA should establish and
publicize the availability of a ``compliance docket,'' for any input
about the effectiveness or ineffectiveness of interim risk-reduction
measures. In addition, EPA's Office of Pesticide Programs (OPP) should
communicate to EPA's Office of Enforcement and Compliance Assurance the
adoption by OPP of label changes and any material information received
by OPP in its compliance docket.
STATEMENT OF THE ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
The following formal statement was adopted by the Assembly of the
Administrative Conference on December 9, 1993:
Statement No. 16 Right to Consult With Counsel in Agency
Investigations
In recent years, Congress has attached sanctions to an increasingly
wide range of regulatory violations, causing federal administrative
agencies to become involved more routinely in investigations that lead
to civil or criminal prosecution. The Administrative Conference has
completed a study that explores the procedures that govern the
relationship between the agency and a person compelled to appear before
the agency in such investigations.
The Administrative Procedure Act at section 555(b) provides that
``[a] person compelled to appear in person before an agency or
representative thereof is entitled to be accompanied, represented, and
advised by counsel or, if permitted by the agency, by other qualified
representative. A party is entitled to appear in person or by or with
counsel or other duly qualified representative in an agency
proceeding.'' This brief reference to counsel in the APA leaves a
number of questions open. The Act, for example, does not specify the
types of actions attorneys may take in representing their clients
during agency investigative proceedings. It also does not indicate
precisely which persons coming in contact with an agency may invoke the
right to counsel.1
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\1\The 1941 Attorney General's Report on Administrative
Procedure in Government Agencies is strangely taciturn on the
subject of legal representation. Sen. Doc. No. 8, 77th Cong., 1st
Sess. (1941). The report throughout refers to the presentations and
contentions of ``parties,'' without any indication whether parties
would or would not have the benefit of legal counsel. Statements in
both House and Senate committee reports regarding this provision of
the APA state simply that it is ``designed to confirm and make
effective'' the ``statutory and mandatory right'' of interested
persons to appear personally or with counsel before the agency. Sen.
Doc. No. 248, 79th Cong., 2d Sess. 205, 263 (1946).
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Because the roles of investigators in federal agencies, and the
methods by which witnesses or parties appear before agencies vary
considerably, the Administrative Conference does not believe it can
develop a uniform set of recommendations concerning these procedures.
However, the Conference believes it would be valuable to provide a
statement on some of the issues raised in such investigations
concerning the role of counsel so that those government officials
involved can be made aware of the issues and seek additional guidance
where warranted.
I. Agency Exclusion of Counsel
Although courts construing the APA's right-to-counsel provision
have held that the right includes the power to retain counsel of one's
own choosing, some federal agencies have, by rule or order, reserved
the power to exclude counsel who represents a person compelled to
appear before an agency representative during an investigation. They
have done so out of a concern that the particular attorney may impair
the effectiveness of the investigation, especially where the attorney
represents either multiple witnesses, or a witness and his or her
employer.
Agencies should consider whether, in most situations, a person
compelled to appear in agency investigative proceedings ought to have
the discretion to choose his or her own counsel, even where counsel
represents multiple witnesses or parties in the matter. As courts have
held, an agency must have ``concrete evidence'' that an investigation
will be impaired before it may exclude counsel.2 Thus, the mere
fact of multiple representation, an employment relationship between the
witness and some other party involved in the investigation, or past
dealings between the agency and a particular attorney should not be
considered, in and of themselves, a sufficient basis for excluding the
counsel of a witness.
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\2\See SEC v. Csapo, 533 F.2d 7 (D.C. Cir. 1976); Professional
Reactor Operator Society v. NRC, 939 F.2d 1047 (D.C. Cir. 1991).
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Regardless of an agency's decision on the above matter, it has the
power to exclude counsel for disruptive or obstructionist behavior
during the proceedings, and to take action in situations where the
attorney is suspected of personal involvement in the potential
violations or matters under investigation.
II. Consultation With Auxiliary Experts
Because of the highly technical nature of many regulatory fields,
attorneys who advise witnesses or parties in some agency investigations
must consult with accountants, engineers, economists, or other experts
in order to provide effective legal assistance. The prevailing practice
among federal agencies is to allow such consultation with auxiliary
personnel, either by allowing the expert to attend the proceedings or
by allowing the attorney a reasonable opportunity during the proceeding
to consult with the expert about the substance of the investigation.
Agencies that do not currently provide this opportunity should consider
whether to allow counsel representing a person compelled to appear
before the agency reasonable access to auxiliary experts, regardless of
whether the investigation involves civil or criminal sanctions.
III. Informing Persons of Their Right to Counsel
Agencies should be sensitive to the right to counsel that persons
compelled to appear before it are granted under the APA and other
statutes, and should consider when it is appropriate to advise such an
individual of this right. Where necessary, agencies should consider
providing training on this subject to field investigators. In the
interest of maintaining an effective working relationship between
federal regulatory agencies and regulated parties, agencies should
consider whether it is appropriate to conduct a compelled investigative
proceeding in the absence of legal counsel when it is apparent that a
person is unaware of his or her right to counsel.
[FR Doc. 94-2225 Filed 1-31-94; 8:45 am]
BILLING CODE 6110-01-W
