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...
Historical Recommendations (1968 - 1995)
Elimination of the "Military or Foreign Affairs Function" Exemption from APA Rulemaking Requirements
- Recommendation number: 73-5
- Adopted on: December 18, 1973
- Tags: Administrative Procedure Act (APA), Congress, Foreign Affairs, Military, Rulemaking
- Recommendation number: 73-6
- Adopted on: December 19, 1973
- Tags: Environmental Law, Generic Proceedings, Licensing, National Environmental Policy Act (NEPA), Public Information
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...
- Recommendation number: 72-1
- Adopted on: June 8, 1972
- Tags: Broadcasting, Public Information
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...
- Recommendation number: 72-2
- Adopted on: June 9, 1972
- Tags: Conflict of Interest, Congress, Indians, Sovereign Immunity
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...
- Recommendation number: 72-3
- Adopted on: June 9, 1972
- Tags: Parole, Prisoners, Representation
The U.S. Board of Parole consists of eight members and employs a staff of eight examiners. It conducts about 17,000 proceedings a year relating to the grant or denial of parole, involving about 12,000 prison interviews, and close to 2,000 proceedings relating to the revocation or continuation of parole. The Board controls approximately two-thirds of the time actually served under fixed-term Federal prison...
- Recommendation number: 72-4
- Adopted on: June 9, 1972
- Ratemaking, Settlements, Suspension
The determinations of the Civil Aeronautics Board, Federal Communications Commission, Federal Power Commission, and Interstate Commerce Commission, whether to exercise or refrain from exercising their power to suspend and investigate newly filed rate proposals, are of great importance to regulated companies, their customers, and the general public. Although a decision not to suspend does not preclude an agency...
- Recommendation number: 72-5
- Adopted on: December 14, 1972
- Tags: Administrative Procedure Act (APA), Congress, Rulemaking, Trial-type Procedures
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 extensively used and on the whole has worked...
- Recommendation number: 72-6
- Adopted on: December 14, 1972
- Tags: Adjudication, Civil Money Penalties
Federal administrative agencies enforce many statutory provisions and administrative regulations for violation of which fixed or variable civil money penalties may be imposed.[1] During Fiscal 1971, seven executive departments and thirteen independent agencies collected well in excess of $10 million, in over 15,000 cases; all evidence points to a doubling or tripling dollar magnitude and substantially increasing...
- Recommendation number: 72-7
- Adopted on: December 15, 1972
- Tags: Congress, Judicial Review, Military, Representation, Selective Service System
Section 10(b)(3) of the Military Selective Service Act, 50 U.S.C. App. § 460(b)(3) (1970), in terms forbids judicial review of administrative determinations relating to the classification and processing of Selective Service registrants, except as incident to criminal prosecutions. In fact, the writ of habeas corpus is available to a registrant who submits to induction and wishes to challenge the classification...
- Recommendation number: 72-8
- Adopted on: December 15, 1972
- Tags: Appeals, Ex Parte Communications, Federal Employees, Hearing Officers, Hearings
A critical part of the mission of the Administrative Conference is to study the processes of government to assure the full protection of the rights of private citizens, including the rights of federal employees. At the same time, the Conference is equally concerned about assisting government agencies to devise and implement efficient administrative procedures that will facilitate accomplishment of their varied...