65 Tex. L. Rev. 1243 (1986-1987)
Regulatory Analysis and Regulatory Reform

handle is hein.journals/tlr65 and id is 1277 raw text is: Texas Law Review
Volume 65,       Number 7,       June 1987
Regulatory Analysis and Regulatory Reform*
Thomas 0. McGarity**
I. Introduction
In the late 1960s and early 1970s, critics of federal regulation com-
plained about the cumbersome adjudicatory procedures that agencies'
used to implement many regulatory actions.2 In response, many agencies
invoked the Administrative Procedure Act's3 moribund informal rule-
making procedures4 to promulgate general rules to govern private con-
duct. At about the same time, Congress enacted a new generation of
regulatory statutes that imposed new social and environmental responsi-
bilities on entire sectors of the economy.5 These social regulation stat-
utes often required federal agencies to govern through informal rule
Copyright  1987 by Thomas 0. McGarity
** William Stamps Farish Professor of Law, The University of Texas School of Law. B.A.
1971, Rice University, J.D. 1974, The University of Texas School of Law.
This Article is derived from a portion of a report to the Administrative Conference of the
United States. The views expressed herein, however, are the author's own and not necessarily those
of any member of that agency.
The author would like to express his appreciation to Ms. Mary Sahs, class of 1986, University of
Texas School of Law for research assistance and to Mr. Michael Brown of the Administrative Con-
ference staff for helpful comments and support.
1. For example, the Federal Reserve System, the National Credit Union Administration, the
Consumer & Marketing Service of the Department of Agriculture, the Social Security Administra-
tion of the Department of Health, Education & Welfare, and the Federal Maritime Commission. See
36 Fed. Reg. 19706 (1971); 35 Fed. Reg. 18533 (1970); 34 Fed. Reg. 207 (1969); 32 Fed. Reg. 8916
(1967); 31 Fed. Reg. 5575 (1966).
2. See, e g., Hamilton, Procedures for the Adoption ofRules of GeneralApplicability: The Need
for Procedural Innovation in Administrative Rulemaking, 60 CALIF. L. Rav. 1276, 1283-1313 (1972)
(arguing that the procedures developed for formal rule making are time-consuming, costly, and bur-
densome on the agencies).
3. 5 U.S.C.  551-559, 701-706 (1982).
4. 5 U.S.C.  553 (1982).
5. See, eg., Occupational Safety and Health Act of 1970, 29 U.S.C.  651(b) (1982) (declaring
that Congress' intent is to assure as far as possible every working man and woman in the Nation
safe and healthful working conditions and to preserve our human resources); Federal Water Pollu-
tion Control Act, 33 U.S.C.  1251(a) (1982) (stating that the Act's objective is to restore and
maintain the chemical, physical, and biological integrity of the Nation's waters); Clean Air Act, 42
U.S.C.  7401(b) (1982) (stating that the Act's purpose is to protect and enhance the quality of the


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