Rulemaking (Recommendations)

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Recommendation 2012-2, “Midnight Rules,” addresses several issues raised by the publication of rules in the final months of a presidential administration. The recommendation offers a number of proposals for limiting the practice of issuing midnight rules by incumbent administrations and enhancing the powers of incoming administrations to review midnight rules.

The National Labor Relations Board (the Board) has formulated policy almost exclusively through the process of administrative adjudication despite having been granted both rulemaking and adjudicatory power in its statutory charter more than half a century ago. Even as rulemaking eclipsed adjudication as the preferred method of policymaking among...

The Magnuson-Moss Warranty—Federal Trade Commission Improvement Act, P.L. 93-637, which became effective January 5, 1975, provides authority and procedures for the Federal Trade Commission’s promulgation of “trade regulation rules.” The statute requires the Commission to engage in “hybrid” rulemaking, a style which adds to the notice-and-comment requirements for “informal...

The Administrative Procedure Act, 5 U.S.C. 553, establishes the procedural requirements for notice-and-comment rulemaking. It requires that an agency generally publish notice and provide opportunity for public comment before adopting a rule. The section also provides for a number of specific exemptions. One of these exemptions in subsection (b)(A),...

The time regulatory agencies take to make decisions is widely criticized. Rate cases—that is, cases in which an agency must consider whether to approve a proposed schedule of charges for particular services—aptly illustrate the need to explore ways of making sound decisions more quickly. Because rate cases differ in kind and complexity, as well as in their immediate and...

This recommendation addresses use of agency policy statements. Policy statements fall within the category of agency actions that are “rules” within the Administrative Procedure Act’s definition because they constitute “the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret...

Informed observers generally agree that the rulemaking process has become both increasingly less effective and more time-consuming. The Administrative Procedure Act does not reflect many of the current realities of rulemaking. The APA’s cumbersome “formal rulemaking” procedures are rarely used except in some adjudicative-type rate proceedings....

Recommendation 2011-2, “Rulemaking Comments,” recognizes innovations in the commenting process that could promote public participation and improve rulemaking outcomes. The recommendation encourages agencies (1) to provide public guidance on how to submit effective comments, (2) to leave comment periods open for sufficient periods, generally at least 60 days for significant...

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