Two developments slowly are tying the hands of federal regulators - industry attempts to disquality regulators from proceedings because of alleged prejudice and Carter administration efforts to force health and safety regulators to make their rules "cost effective"-says one regulator.
In a speech to the Fifth Annual Federal Bar Association Conference last week. Consumer Product Safely Commissioner R. David Pittle attacked the Association of National Advertisers for its suit aimed at eliminating Federal Trade Commission Chairman Michael Pertschuk from the children's advertising proceedings.
"Is it really in the public interest to encourage regulators to rule for public comment since the act of proposing the rule necessarily requires my judgment that a rule is needed and that the particular rule that is proposed is appropriate?"
Pittle said he feared the "increasing judicialization of the regulatory process" and the concurrent trend toward forcing regulators to compile substantial evidence to defend their proposed rules.
"The more like a trial a rule-making becomes, the more natural it seems to expect a regulator to adhere to judicial standards for what constitutes prejudgement," he said.
Pittle said most regulatory proceedings involve balancing two or three opposing points of view, "each equally well-situated to put conceal their habits of thinking?" Pittle asked in his address, which bore the title, "Prejudgment: An Open Mind or an Empty One?"
"Or is the public interest better served by the frank and open discussion of the merits of a regulator's philosophy that can follow only if its existence is acknowledged and its contents made known?" he added.
"Show me a regulator who claims to have no opinions on policy matters and you have shown me either a fool or a liar!" Pittle said.
He contended that regulators must form at least preliminary opinions on the facts of various cases, if even only to decide if the proceeding meets a need.
"Is it prejudgment, then,for me to make an initial decision that there is a need to consider regulatory action?" he asked.
"To carry things to an extreme, how can I even vote to propose a on the best possible case." In such cases, "there is (frequently) no single correct solution waiting to be discovered," he added.
"Thus it seems to me that rule-making us most often required when the issues are least susceptible to resolution by factual, rather than value, judgement," he said. "There are precisely the situations that least lend themselves to resolution through evidentiary hearings and the other trappings of adjudication."
As for administration efforts to force regulators to make their rules cost-effective, Pittle, a Democrat, said, "It squeezes out the human judgment the experienced regulator should bring to the process."
"Weighing risk and reaching a decision on whether that risk is acceptable to society is not easy when, as is usually the case, the information on which decisions must be made is incomplete," he added.