Orrin Hatch: “What 343 requires is that when there is a major rule, if there is going to be litigation, it has to be the whole rule.…”

“What 343 requires is that when there is a major rule, if there is going to be litigation, it has to be the whole rule. It cannot be nit-picked to death as has been suggested under the language there. And every major rule is litigated now. So there is nothing to those arguments that have been argued here. With regard to what Senator Chafee said, Senator Johnston does, indeed, amend section 706 of the Administrative Procedure Act to apply the 'substantial evidence test' to informal--notice and comment--rulemaking. I wish to point out that this test is hardly novel. It has been codified in the Administrative Procedure Act for almost 50 years--section 706(2)(E)--as the standard to apply in adjudicatory rulemakings. Moreover, Congress has in specific statutes required the substantial evidence test for informal rulemakings since the late 1960's. Just some examples include the Occupational Health and Safety Act of 1970 and the Magnuson-Moss FTC Improvement Act of 1975. In 1981, the Administrative Conference of the United States recommended that section 706 of the APA be amended to include a substantial evidence test for informal rulemakings. That was recommendation No. 81-2. The Administrative Law Section of the American Bar Association made a similar recommendation in 1986. Also, in 1981, the Senate approved the Bumpers amendment to S. 1080, the precursor to present S. 343 that passed the Senate 94 to 0 in 1982.”