Rulemaking (Recommendations)

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With increasing frequency, rules of general applicability adopted by agencies informally pursuant to 5 U.S.C. § 553 are being reviewed by the courts directly, before they are applied to particular persons in adjudicative proceedings. Such review may be by courts of appeals under statutes, mostly older statutes, providing generally for judicial review of orders of specific...

Although largely unknown to lawyers outside the West, the Department of the Interior’s disposition of mining claims on public lands is a significant field of Federal administrative activity and an important element in planning rational use of the public lands.

The procedures for establishing or “locating” mining claims are set out by the General...

The present recommendation implements, and somewhat expands, the statement of principle adopted by the Conference in June 1973 with respect to the American Bar Association’s Resolution No. 10 concerning proposed amendments to the Administrative Procedure Act. It speaks only to the issue of subpena authority in formal proceedings under the Administrative Procedure Act, and...

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...

The Administrative Procedure Act, 5 U.S.C. § 553 (1970), provides simple, flexible and efficient procedure for rulemaking, including publication of a notice of proposed rulemaking in the Federal Register, opportunity for submission of written comments, and opportunity in the discretion of the agency for oral presentation. This notice-and-comment rulemaking procedure is...

The Federal Food, Drug and Cosmetic Act requires the Food and Drug Administration (FDA) to hold a formal evidentiary hearing in connection with promulgation of certain types of rules of general applicability. Detailed findings of fact based solely on the record must accompany the regulations, and such findings are subject to judicial review on a substantial evidence test....

Individuals and citizen organizations, often representing those without a direct economic or personal stake in the outcome, are increasingly seeking to participate in administrative hearings. Their concern is to protect interests and present views not otherwise adequately represented in the proceedings. Agencies are exposed to the views of their staffs, whose positions...

The Magnuson-Moss Warranty—Federal Trade Commission Improvement Act of 1975, Pub. L. 93-637, established special procedures for the adoption of trade regulation rules by the Federal Trade Commission. The Act also created a program for the reimbursement of the expenses of participants in trade regulation rulemaking who qualify for funding under criteria set forth in that...

Agencies of the Federal Government should strive to act on the basis of articulated policies and standards. Concerns of good government and efficient management support this general principle, as do the developing views of the Federal courts.

Recommendation

Agency policies which affect the public should be...

(a) The growing complexity and scope of government regulation resulting from informal rulemaking proceedings have increased the importance of communication and coordination among agencies. Because the President, as the nation’s Chief Executive, may be deemed accountable for what agencies do, efforts to achieve policy coordination through Presidential channels have become...

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