Rulemaking (Recommendations)

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Since 1981, Congress has almost annually made a large number of changes in the Medicaid program. Of primary concern is that Congress, in annual budget legislation (often in the last days of a session), has either made the expansion of benefits effective regardless of whether or not HCFA promulgates implementing regulations or other guidance by a...

Government agencies which conduct formal or informal rulemaking proceedings or cases of adjudication which directly fix the rights and obligations of private persons (hereafter referred to as “proceedings”)[1] owe a special duty to the individuals affected and to the general public to manage their caseloads as efficiently as possible, to eliminate inordinate...

Federal regulation has grown in both scope and complexity in recent decades. Among its wide variety of national goals are: Ensuring competitive markets, spurring economic growth, checking inflation, reducing unemployment, protecting national security, assuring equal opportunity, increasing social security, protecting the environment, ensuring safety...

A. Agency Efforts

1. Federal agencies should engage more extensively in affirmative, self-initiated efforts to ascertain directly from the poor their views with respect to rulemaking that may affect them substantially. For this purpose, agencies should make strong efforts, by use of existing as well as newly devised procedures, to obtain...

The Export Administration Act (EAA), 50 U.S.C. App 2401-2420, authorizes the Commerce Department to restrict exports of goods and technology from the United States in the interests of national security, foreign policy objectives, and preservation of this country’s access to commodities in short supply. It is the principal element in a scheme of...

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...

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