have considered in connection with the charge involved. The individual must have the right to know the theory of the case against him; to examine all such evidence; and to confront, examine and cross-examine any adverse witness. In any administrative proceeding in which a sanction might be imposed, the rights of the individual should be the same as they would be in a judicial proceeding.

5. Each federal agency establishes its own procedures for obtaining evidence and these vary greatly, forcing citizens to shop for expensive and highly specialized attorneys familiar with the unique proceedings of a single agency. There should be more uniformity here. I suggest that we require all federal agencies to adopt the Federal Rules of Evidence.

6. The doctrine of exhaustion of administrative remedies causes great frustration to many individuals and small businessmen who simply cannot afford to appeal a decision through several levels of administrative review. It should be possible to appeal a decision through several levels of administrative review. It should be possible to appeal a decision to a court without exhausting all of one's administrative remedies.

7. The Fourth Amendment guarantees that no American shall be subject to "unreasonable searches and seizures" and that "no warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be search and the persons or things to be seized." In Marshall v. Barlow's, 436 U.S. 307, the Supreme Court held that many warrantless administrative inspections are unconstitutional, but it also held that all OSHA needs to show to get a warrant is "that a specific business has been chosen for an OSHA search on the basis of a general administrative

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plan" for enforcement.

Under the two-pronged Barlow's test, OSHA

can obtain a warrant on the basis of updated statistics that there is a safety problem in a particular industry and that the particular establishment is likely to have this problem as well. Even the British troops who ransacked American warehouses for contraband goods could have received a search warrant under this loose standard. The whole system of administrative inspections would work better if agencies were forced to have some specific evidence of an existing violation before they could get a warrant.

Mr. Chairman, for too many years the American businessman has been at the mercy of the federal bureaucracy. The result has been increased costs, reduced productivity, inflation, unemployment all of which can be laid, at least partially, at the feet of the federal regulators. And there has also been a serious loss of the individual freedoms on which our system rests. It's time we, as the people's representatives, began to correct this major national problem.

Mr. DANIELSON. Our next meeting will be on next Tuesday, May 5, 1981 at 9:30 a.m. in room 2236.

At that time, our witnesses will be our colleague, the Honorable Mr. Mazzoli of Kentucky; Levitas of Georgia; Pease of Ohio; and National Resources defense counsel, and the National Association of Manufacturers.

Three of those individuals have assured us that their statements will be short. So the bulk of the hearing will be on the remaining witness.

The subcommittee will stand adjourned.

[Whereupon, at 12:01 p.m., the hearing was adjourned, to reconvene at 9:30 a.m., Tuesday, May 5, 1981:]

REGULATORY PROCEDURE ACT OF 1981

TUESDAY, MAY 5, 1981

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON ADMINISTRATIVE LAW AND

GOVERNMENT RELATIONS,

OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcomittee met at 10:18 a.m. in room 2237 of the Rayburn House Office Building; Hon. George E. Danielson (chairman of the subcommittee) presiding.

Present: Representatives Danielson, Moorhead, Kindness, and McClory.

Staff present: William P. Shattuck, counsel; Janet S. Potts, assistant counsel; Alan F. Coffey, Jr., associate counsel; and Florence McGrady, clerk.

Mr. DANIELSON. The hour of 10 o'clock having arrived, the subcommittee will come to order.

Today we will continue our hearing on the bill H.R. 746 and related bills relating to the subject of regulatory procedure reform. This morning we have witnesses from two organizations, the first being the Natural Resources Defense Council, which is represented by Frances Dubrowski, their attorney. Ms. Dubrowski, are you still with us?

MS. DUBROWSKI. Yes, I am.

Mr. DANIELSON. Will you come forward.

Ms. Dubrowski, unless there is objection, your complete statement will be received in the record, which will free you to present your case in its most persuasive manner, but please do not read your statement.

[The complete statement follows:]