Recommendations (1968 - 1995)

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Adverse agency publicity—that is, statements made by an agency or its personnel which invite public attention to an agency’s action or policy and which may adversely affect persons identified therein[1]—can cause serious and sometimes unfair injury. Where a reasonable and equally effective alternative is not available, adverse agency publicity is often necessary to warn of a danger to public health or safety or a...

Under the 1965 amendments to the Immigration and Nationality Act aliens seeking permanent residence for the purpose of employment must obtain a certification from the Secretary of Labor that, in essence, there are no suitable workers available in the United States and that their employment will not adversely affect wages and working conditions. 8 U.S.C. 1182(a)(14). The labor certifications are made by the...

The federal government is engaged in either the direct administration or the funding of a substantial number of programs which involve the adjudication of claims of entitlement to benefits or compensation. Examples include veterans’ benefits; the basic Social Security (OASDI) programs; Medicare and Medicaid; public employee retirement benefits; federal employees’ and longshoremen’s and harbor workers’ compensation...

The antidumping law (19 U.S.C. § 160 et seq. (1971)) is designed to prevent foreign manufacturers from selling their products in the United States market at prices less than those charged abroad—at “less than fair value” (LTFV)—if such price discrimination “injures” domestic competitors. Whenever LTFV sales and resulting injury appear, the antidumping law requires the imposition of a duty equal to the amount of...

The basic principle of the rulemaking provisions of the Administrative Procedure Act—that an opportunity for public participation fosters the fair and informed exercise of rulemaking authority—is undercut by various categorical exemptions in 5 U.S.C. § 553(a). More than 25 years’ experience with rulemaking under the APA has shown some of these broad exemptions to be neither necessary nor desirable. The...

The new environmental legislation, especially the National Environmental Policy Act, has imposed on licensing agencies responsibility to consider environmental values in licensing that involves major Federal action significantly affecting the environment. The new responsibility has created new difficulties and has exacerbated old problems for the agencies.

The nature, complexity and sheer...

  • Adopted on: June 8, 1973

In August 1970, the House of Delegates of the American Bar Association adopted twelve resolutions calling in general terms for amendments to the Administrative Procedure Act. They are a valuable means of focusing the attention of the Administrative Conference, the organized bar, and other interested persons upon revisions and improvements in the APA suggested by a quarter-century of experience.

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  • Adopted on: December 19, 1973

The Conference agrees with Resolution No. 1 calling for improved definitions of "rule" and "order" so as to distinguish more clearly between the nature of rulemaking and the nature of adjudication; it endorses the recommendation of the ABA that the words "or particular" and the entire second clause be deleted from the definition of "rule" in the Administrative Procedure Act. The Conference endorses this proposal upon the express...

In recent years radio and television broadcasters have sought live or delayed coverage of many kinds of public governmental proceedings. While Canon 35 of the Canons of Judicial Ethics of the American Bar Association states that broadcasting or televising of court proceedings “should not be permitted,” the reasons for this policy, to the extent they are applicable to administrative proceedings, are often...

The United States acts as the trustee for the land and water rights of American Indians. Many legal disputes involving these rights, however, are between Indians and agencies of the United States which are charged with responsibility to protect Indian interests. Conflict-of-interest problems arising out of this dual involvement on the part of Federal agencies are troublesome and serious. The need exists to provide...

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