The legislative history of section 6 indicates that Congress intended informal rather than formal
rulemaking procedures to apply. See the Conference Report, H. Rept. No. 91-1785, 91st Cong., second sess., 34 (1970). The informality of the
proceedings is also suggested by the fact that. section 6(b) permits the making of a decision on the basis of written comments alone (unless an
objection to a rule is made and a hearing is requested), the use of advisory committees, and the inherent legislative nature of the tasks involved.
For these reasons, the proceedings pursuant to 1911.10 or 1911.11 shall be informal.
Section 6(b)(3) provides an opportunity for a hearing on objections to proposed rulemaking, and
section 6(f) provides in connection with the judicial review of standards, that determinations of the Secretary shall be conclusive if supported by
substantial evidence in the record as a whole. Although these sections are not read as requiring a rulemaking proceeding within the meaning of the
last sentence of 5 U.S.C. 553(c) requiring the application of the formal requirements of 5 U.S.C. 556 and 557, they do suggest a congressional
expectation that the rulemaking would be on the basis of a record to which a substantial evidence test, where pertinent, may be applied in the event
an informal hearing is held.
The oral hearing shall be legislative in type. However, fairness may require an opportunity for
cross-examination on crucial issues. The presiding officer is empowered to permit cross-examination under such circumstances. The essential intent is
to provide an opportunity for effective oral presentation by interested persons which can be carried out with expedition and in the absence of rigid
procedures which might unduly impede or protract the rulemaking process.
Although any hearing shall be informal and legislative in type, this part is intended to provide more
than the bare essentials of informal rulemaking under 5 U.S.C. 553. The additional requirements are the following:
The presiding officer shall be a hearing examiner appointed under 5 U.S.C. 3105.
The presiding officer shall provide an opportunity for cross-examination on crucial issues,
The hearing shall be reported verbatim, and a transcript shall be available to any interested person
on such terms as the presiding officer may provide.
[37 FR 8664, Apr. 29, 1972, as amended at 37 FR 12231, June 21, 1972]