RULEMAKING AND JUDICIAL REVIEW

• NCJ Number: 56205
• Journal: ADMINISTRATIVE LAW REVIEW Volume: 30 Issue: 3 Dated: (1978) Pages: 461-466
• Author(s): J S WRIGHT
• Date Published: 1978
• Length: 6 pages
• Corporate Author: American Bar Association
• Publication Format: Article
• Language: English
• Country: United States of America
• Note: REMARKS MADE AT THE ECONOMIC REGULATION CONFERENCE, WASHINGTON, DC, JANUARY 27, 1978

Annotation

THE CHIEF JUDGE OF THE U.S. COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT OFFERS SUGGESTIONS TO OFFICIALS RESPONSIBLE FOR ADMINISTRATIVE RULEMAKING UNDER THE DEPARTMENT OF ENERGY ORGANIZATION ACT.

Abstract

THE ACT REQUIRES THE SECRETARY OF THE DEPARTMENT OF ENERGY AND THE FEDERAL ENERGY REGULATORY COMMISSION TO ENGAGE IN CONSIDERABLE RULEMAKING, MUCH OF WHICH WILL BE A WASTE OF TIME UNLESS THE RULES SURVIVE JUDICIAL REVIEW. THE ACT ADOPTS THE RULEMAKING PROVISIONS OF THE ADMINISTRATIVE PROCEDURES ACT (APA), WHICH PERMITS THREE TYPES OF RULEMAKING: INFORMAL (NOTICE-AND-COMMENT); TRIAL-TYPE (FORMAL EXAMINATION AND CROSS-EXAMINATION OF WITNESSES); AND A PROCEDURE BY WHICH PRECEDENTS DERIVED FROM THE AGENCY'S OWN ADJUDICATIONS ARE USED AS RULES. TRIAL-TYPE RULEMAKING OFTEN IS CHARACTERIZED BY DELAYS. ADJUDICATION RULEMAKING, IN WHICH PARTIES ARE CHARGED WITH VIOLATIONS BEFORE RULES HAVE BEEN WRITTEN, RAISES SOME DUE PROCESS QUESTIONS. UNDER PRODDING FROM THE COURTS, MOST AGENCIES ARE MOVING TO SIMPLE, INFORMAL RULEMAKING, TO THE EXTENT THEIR STATUTES WILL ALLOW. IT IS THIS PROCEDURE THAT IS RECOMMENDED TO THE DEPARTMENT OF ENERGY. ALL THAT IS REQUIRED IN INFORMAL RULEMAKING IS THAT PROPOSED RULES AND SUPPORTING DATA BE PUBLISHED IN THE FEDERAL REGISTER WITH NOTICE THAT COMMENTS WILL BE RECEIVED BY THE AGENCY DURING A STATED PERIOD. THEREAFTER THE RULES ARE ISSUED AS PUBLISHED OR AS AMENDED IN RESPONSE TO COMMENTS, OR WITHDRAWN. UPON ISSUING THE RULES, THE AGENCY RESTATES AND UPDATES ITS REASONS FOR THE RULES AND RESPONDS TO COMMENTS. AGENCIES THAT ENGAGE IN INFORMAL RULEMAKING MUST KEEP A THOROUGH WRITTEN RECORD SO THE COURTS WILL BE ABLE TO REVIEW THE RULEMAKING PROCESS WHEN CALLED UPON TO DO SO. AGENCIES COULD USE THE COURTS' RECORDKEEPING TECHNIQUE OF MAINTAINING A SINGLE CHRONOLOGICAL PUBLIC DOCKET ON EACH CASE. IT IS ESPECIALLY IMPORTANT THAT THERE BE NO EX PARTE (OFF-THE-RECORD) CONTACTS WITH DECISIONMAKERS DURING RULEMAKING. (LKM)