Reform of Federal Regulation Act of 1979

(Reported jointly to Senate from the Committee on Governmental Affairs with amendment (without written report))

Reform of Federal Regulation Act of 1979 -=Title I: The Analysis, Planning and Management of Regulatory Functions= - Requires each Federal agency to publish for each proposed major rule, as such rule is defined in this Act, an initial regulatory analysis which describes the need for the rule, at least two available alternative approaches, and the economic and social effects of the proposed rule and alternatives. Requires each agency to provide interested persons 40 days after the initial analysis is published to submit written comments on such analysis, and to provide 20 additional days for persons to respond to such comments. Directs each agency to publish for each adopted major rule a final regulatory analysis which includes a justification of the selection of the final rule, a summary of significant public comments received on the initial analysis, and the agency's assessment of such comments. Specifies a number of factors each agency should consider when preparing a regulatory analysis, including: (1) the use of design versus performance standards; (2) the impact of the rule on productivity, competition, small businesses, and geographic regions; and (3) the paperwork impact of the rule.

Specifies conditions under which the agency head may waive requirements for an initial or final regulatory analysis. Bars such analyses from judicial review. Authorizes an agency to use such written and oral procedures as it deems necessary to resolve controversies during consideration of a major rule. Directs the Comptroller General of the United States to report to Congress and the public on the agency actions to implement this title.

Requires each agency to: (1) include in the announcement of a rulemaking or adjudication the date by which the agency intends to complete such proceeding; and (2) to report annually to the Administrative Conference of the United States, the Congress, and the public on its regulatory activities of the past fiscal year. Stipulates that such report include: (1) the number of agency proceedings which the agency failed to complete by the established deadline and the reasons for such failure; (2) any changes the agency made to improve its regulatory actions; (3) a statement of the number of rules promulgated, modified, amended, or repealed by the agency during such year; (4) agency plans to reduce or simplify its rules; (5) the number of and citations to judicial actions challenging the validity of any agency rule; (6) a description of the use of funds by that agency to procure the services of a consultant pursuant to an appointment authorized or a contract awarded for the preparation of any document for use in the performance of a regulatory function of that agency; and (7) a description of the regulatory priorities of the agency for the current fiscal year.

Directs each regulatory agency to establish an office to be responsible for the actual planning and management of regulatory activities, or the oversight of such planning and management.

Directs the President to establish within the Executive Office of the President a United States Regional Council to: (1) identify overlapping, conflicting, or duplicative agency rules and single areas of the economy or State and local governments significantly affected by the cumulative impact of Federal rules; (2) organize interagency task forces to alleviate such problems; (3) publish information regarding the regulatory goals and activities of agencies; and (4) consult with State and local governments to identify and reduce conflicting, overlapping, or duplicative rules of Federal agencies and such governments.

Requires the Director of the Office of Management and Budget (OMB) to review and report to the President and Congress on agency compliance with this Title.

Requires any independent regulatory commission to submit any budget information or legislative recommendation to Congress concurrently upon submission to any officer or agency of the executive branch.

Authorizes the head of every Federal agency to utilize State or local government regulations, procedures, or reporting requirements if they duplicate Federal requirements and are consistent with the goals of Federal statutes.

=Title II: Improving the Efficiency of Administrative Proceedings= - Requires that the general statement published with each rule adopted by an agency include a response to significant issues raised by public comments received concerning the rule.

Directs each agency to maintain a file of major paperwork for each informal rulemaking proceeding.

Establishes a new procedure for administrative adjudications and rulemaking required by statute to be determined on the record after an opportunity for an agency hearing, with specified exceptions. Provides two levels for the conduct of such proceedings. Allows an agency to utilize a "general hearing process" for any proceeding predominantly concerning general policy issues rather than specific factual questions, excluding any proceeding: (1) to impose civil penalties; (2) to establish that a person has committed a culpable violation of law; or (3) to determine claims for certain benefits. Maintains a "formal hearing" procedure for all such proceedings not subject to the general hearing process, and for resolution of genuine and substantial disputes of fact which cannot be resolved in a general hearing, and upon which the decision of the agency is likely to depend.

Prohibits the presiding employee at a general or formal hearing of an agency from being responsible to or subject to the supervision of an employee performing investigative or litigating functions for the agency.

Enumerates the powers of a presiding employee. Authorizes such employee to cross examine witnesses and to request the agency to consider and act on interlocutory appeals when action on such appeals would expedite final agency action. Directs the employee to: (1) oversee the expeditious completion of such hearing; and (2) provide a concise record of the important matters of the proceeding.

Prohibits a presiding employee, a person assisting or advising such employee, or a member of an employee review board from making ex parte communications, except that such persons may consult with specified agency employees in rulemaking or initial licensing proceedings. Prohibits any person performing investigative or litigating functions for an agency from participating in the decision making of such proceedings or in an agency review thereof, except as a witness or counsel in public proceedings.

Directs each agency to issue a rule designating the categories of proceedings to which the general hearing process shall apply. Requires, for such process, the conduct of a hearing to afford parties an opportunity to submit written data, and, at the request of any party, an opportunity for oral argument. Directs the presiding officer at a general hearing to designate any disputed questions to be resolved at a formal hearing.

Allows an agency to prohibit an individual from appearing at a proceeding if the individual engages in unethical conduct.

Authorizes an agency to subpoena any person or information as necessary in any proceeding. Directs each agency to designate the officers authorized to issue subpoenas. Sets forth the judicial procedure regarding an action questioning the validity of a subpoena, and the civil penalty for persons who fail to comply with a subpoena.

Requires each agency to maintain a public file of significant material concerning the major stages of a proceeding.

Authorizes the presiding employee at a formal hearing to: (1) rule on offers of proof and receive relevant evidence; (2) require written testimony and arguments when oral testimony is not required; and (3) upon request, to issue a decision prior to completion of the hearing if there is no substantial dispute of fact.

Authorizes each agency to establish employee boards to review the decisions of presiding employees. Directs each agency to specify the conditions under which it will accept an appeal of the decision of such a board, and specifies the conditions which enable an agency to review such a decision.

Directs the Administrator of the Administrative Conference of the United States: (1) in consultation with the Office of Personnel Management, to establish qualifications for administrative law judges; (2) to recruit for judge positions among all groups of qualified persons; and (3)to test, register, and certify eligible candidates for such position. Authorizes each agency to appoint a judge from the list of certified candidates.

Requires the Administrator to establish a performance appraisal system which provides for: (1) an evaluation of the performance of each judge appointed after the effective date of this title during the third of the tenth year of the judge's term of office; and (2) an evaluation, at least every ten years, of the performance of each judge appointed before the effective date of this title. Directs the Administrator to establish performance appraisal system and to make recommendations to the Administrator concerning the performance of judges. Declares that the findings of such an evaluation shall be submitted to the judge involved and included in a file on each judge to be maintained by the Administrator. Allows the judge involved to submit to the Administrator statements of disagreement with any finding.

Directs the Administrator to review the file of each judge during the tenth year of the judge's term to determine whether the judge is qualified to be reappointed. Requires an agency to reappoint a judge if the Administrator determines that the judge is qualified. Prohibits the reappointment of any judge determined not so qualified. Permits a judge to appeal an adverse determination of the Administrator to the Merit Systems Protection Board (Board) only if a performance review board determines the judge to be qualified. Entitles any judge who is not reappointed to be placed in a civil service position at a pay rate equal to his or her pay rate as a judge. Directs the Board: (1) to reduce in grade or remove any judge appointed after the effective date of this title whose performance is found to be unacceptable; and (2) to remove, suspend, reduce in grade or reduce the pay of any judge if such action would promote the efficiency of the service. Authorizes the Administrator to reduce in grade or remove judges appointed before the effective date of this title. Provides for the transfer and reassignment of judges by the Administrator.

Requires the President to nominate individuals for appointment to regulatory agencies by reason of their training, education, or experience, and to appoint the chairman of an independent regulatory commission by and with the advice and consent of the Senate.

Permits any agency conducting a proceeding involving a regulatory function to make recommendations to the Administrator to provide financial assistance to any person for participating in such proceeding. Authorizes the Administrator to pay participation expenses of any person: (1) who represents an interest which would not be represented by another party and the representation of which would contribute to a fair disposition of the proceeding; and (2) who could not afford to participate in the proceeding without such assistance. Directs each agency to take certain measures to publicize the availability of such financial assistance. Requires an individual to file an application containing specified information to obtain such assistance, and to enter into a written agreement with the Administrator upon obtaining such assistance. Limits the amount of such assistance an individual may receive in a fiscal year. Directs the Administrator to: (1) recommend that the Attorney General take appropriate action to recoup all or part of such assistance provided to a person who fails to provide adequate representation at a proceeding or otherwise acts in bad faith; (2) allocate 25 percent of the funds for such assistance each year to small business concerns; and (3) report to Congress and the Director of OMB concerning the identity of each applicant and recipient of such assistance and the amount of assistance sought and received. Requires the Comptroller General to submit to Congress, not later than October 1, 1983, an audit and report on the implementation of such assistance program.

=Title III: Agency Review of Rules= - Requires each regulatory agency to review its rules (excluding rules relating to internal revenue laws) periodically to determine whether continuation or amendment to the rule is in the public interest. Directs each agency: (1) to include in its annual report on its regulatory activities and to publish in the Federal Register a list of all of its major rules and a draft schedule indicating which of such rules and other policies and practices the agency intends to review during the next ten years; (2) to provide 60 days for public comment on such list and schedule; and (3) to publish and transmit to the legislative committees having jurisdiction over agency regulatory functions a final list, review schedule, and a summary of public comments on the draft list and schedule.

Directs each agency: (1) in the fifth year after such final schedule is published, to publish and send to the appropriate legislative committees a notice seeking public comment on amending the schedule by expediting review of particular rules or by including additional rules; and (2) to publish any such revised schedule and to include it in the agency's report on regulatory activities for that fiscal year.

Specifies factors each agency shall consider when reviewing a rule. Directs each agency: (1) to provide an opportunity for public comment on whether a rule under review should be amended or rescinded; and (2) to report to Congress and the public on the results and determination of each review.

Requires the Comptroller General to monitor and report to Congress and the public concerning agency compliance with provisions of this title.

=Title IV: Administrative Conference of the United States= - Reorganizes the Administrative Conference. Makes the head of the Conference the Administrator who shall be appointed by the President with the advice and consent of the Senate for a four-year term. Grants the Administrator authority to appoint officers and employees and to prescribe their powers and duties as necessary.

Sets forth the functions of the Conference which include: (1) providing guidance and assistance to agencies concerning the Administrative Procedure Act; (2) testifying on the effects of proposed legislation or administrative procedure; (3) assisting agencies to develop alternative methods for accomplishing statutory goals; and (4) to conduct research or methods of making agencies accountable to the public and Congress. Directs the Conference to submit to Congress an analysis of the annual agency reports on regulatory activities and rules reviewed, and to report to Congress on a study of providing incentives to participants to expedite agency proceedings.

Establishes an Advisory Commission within the Conference. Authorizes the Administrator to establish one or more panels to assist in the carrying out of specific projects and responsibilities of the Conference.