- cross-examination and rebuttal on disputed issues of material fact; rule to be based on rulemaking record, as defined in Act; -statement of basis and purpose accompanying final rule to include specific findings; Federal Trade Commission Improvements Act of 1980, - advance notice of rulemaking, including submission to Congress (S 8); - independent presiding officer (S 9); - text of proposed rule (§ 11); restrictions placed on off-the-record communications during rulemaking (S 12); - preliminary and final regulatory analyses required (S 15); -- legislative veto (S 21). 1975 Energy Policy & Conservation Act, 42 US.C. SS 6295, 6306 (as amended by Pub. L. No. 95-619, title IV, part 2, 92 Stat. 3206, 3257-62). [Energy efficiency standards] - advance notice of proposed rulemaking, giving persons 45 days to submit comments; - opportunity for oral hearing; deadlines for promulgation and effective date of final rule. 1975 Securities Acts Amendments, Pub. L. No. 94-29, S 4, 89 Stat. 97, 104, 108 (codified at 15 US.C. S 78f(e) (1976)). [SEC approval or disapproval of exchange rules relating to rates of com missions, allowances, discounts or other fees] opportunity for oral presentation of data, views or arguments; cross-examination and rebuttal on disputed issues of material fact; substantial evidence review. 1976 Medical Device Amendments (to the Federal Food, Drug and Cosmetic Act), Pub. L. No. 94-295, SS 514-17; 520(d), (f), 90 Stat. 539, 546-60; 565-67 (codified at 21 US.C. S 360d-g,j (1976)). [Various types of standards and regulations] - consultation requirements (21 U.S.C. $ 360d (b)). 1, S 501, 91 Stat. 565, 587 (codified at 42 US.C. 1976)). Department of Energy rules] - comply with APA, except - notice of proposed rulemaking to inlcude rule and description of supporting data; - minimum 30-day comment period; -- APA exemption for public property, loans, grants or contracts not applicable, - oral presentation of views, data and argument if Secr finds substantial issue of fact or law exists or rule lil to have substantial impact on economy, individuals, businesses; final rule must be accompanied by statement respond "major comments, criticisms, and alternatives offere during comment period; --"good cause" exemption, but full post-promulgation compliance with rulemaking procedure required. 1977 Clean Air Act Amendments, Pub. L. No. 95-95, S 91 Stat. 685, 772 (codified at 42 U.S.C. S 7607(d) (Supp. V 1981)). [Applying to numerous types of standards and regulatio under the Clean Air Act] -establishment of rulemaking file, statement of basis and purpose for proposed rule and more stringent notice requirements, 69 CHAPTER THREE: CONSIDERING WHETHER TO UNDERTAKE RULEMAKING The increasing procedural and substantive analysis requirements placed on rulemaking make it unlikely that agency rulemakers will take lightly the decision to begin a rulemaking proceeding. Rulemaking can be costly both for interested persons who choose to participate in the rulemaking and for the agency. Therefore, at the outset the agency should consider carefully whether rulemaking is the best or only way to set policy in the problem area. 1 Recently there has been renewed interest in "nonregulatory" alternatives to federal regulation. Types of nonregulatory alternatives frequently discussed are reliance on the free market, regulated only by antitrust laws; use of government publicity or education; use of taxes to induce action or shift burdens; reliance on, or making changes to, common law liability rules; bargaining; industry self-regulation (e.g., through adoption of voluntary consensus standards or licensing and certification programs), and insurance or other compensation plans (e.g., surety, bonding, or escrow requirements or government-subsidized insurance).2 Whether agencies can use these non-regulatory alternatives to address problems will depend on their enabling statutes. At least one statute-the Consumer Product Safety Actstates a preference for reliance on a non-regulatory solution.3 1/ We are not referring here to regulatory alternatives to traditional "command-and-control" regulation. That subject is covered in the next chapter. See Chapter IV at pp. 108-111. 2/ See generally M. Baram, Alternatives to Regulation (Lexington, Mass: D.C. Heath & Co. 1982); S. Breyer, Regulation and Its Reform, Chapt. 8 (Cambridge, Mass: Harvard Univ. Press 1982); U.S. Small Business Administration, The State of Small Business: A Report to the President, Chapt. 7 (Mar. 1983). 3/ 15 U.S.C. § 2056(b) (Supp. V 1981) states: The Commission shall rely upon voluntary consumer product safety standards rather than promulgate a consumer product safety standard . . . (Continued) 72 |