Event Title

Ratemaking as Rulemaking - The New Approach at the FPC: Ad Hoc Rulemaking in the Ratemaking Process

Presenter Information

Melvin G. Dakin

Location

Duke Law School

Start Date

2-2-1973 10:15 AM

End Date

2-2-1973 11:15 AM

Description

The federal Administrative Procedure Act has been on the statute books for a quarter of a century. However, only now are the compromises agreed upon in order to soften the rigors of adjudicatory procedures being fully exploited by the Federal Power Commission and upheld by the courts. The FPC now deems itself authorized to forsake its long-established pattern of "full evidentiary hearings" in ratemaking cases for a new streamlined procedure based on the compromise procedure of the APA, which exempts ratemaking from adjudication and includes it in rulemaking. In the course of using the "ratemaking as rulemaking"' provision, however, the FPC has taken undue advantage of the fact that interpretive rulemaking, an integral part of formulating a rate model, is exempted from the formal publication requirements of rulemaking. Since interpretive rulemaking is normally carried on in an adjudicative proceeding and the rules published in an opinion, interpretive rules were plausibly exempted from such requirements by the draftsmen of the APA. However, in present FPC practice, where there is no adjudicative proceeding but only a rulemaking proceeding, merely the rate order and other orders associated therewith are promulgated as formal rules. The interpretive rules which go into the formulation and application of a rate model are not proposed or published as formal rules and are subject to only indirect attack in the rulemaking proceeding.

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Related Paper

Melvin G. Dakin, Ratemaking as Rulemaking—The New Approach at the FPC: Ad Hoc Rulemaking in the Ratemaking Process, 1973 Duke Law Journal 41-88 (1973)

Available at: http://scholarship.law.duke.edu/dlj/vol22/iss1/2

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Feb 2nd, 10:15 AM Feb 2nd, 11:15 AM

Ratemaking as Rulemaking - The New Approach at the FPC: Ad Hoc Rulemaking in the Ratemaking Process

Duke Law School

The federal Administrative Procedure Act has been on the statute books for a quarter of a century. However, only now are the compromises agreed upon in order to soften the rigors of adjudicatory procedures being fully exploited by the Federal Power Commission and upheld by the courts. The FPC now deems itself authorized to forsake its long-established pattern of "full evidentiary hearings" in ratemaking cases for a new streamlined procedure based on the compromise procedure of the APA, which exempts ratemaking from adjudication and includes it in rulemaking. In the course of using the "ratemaking as rulemaking"' provision, however, the FPC has taken undue advantage of the fact that interpretive rulemaking, an integral part of formulating a rate model, is exempted from the formal publication requirements of rulemaking. Since interpretive rulemaking is normally carried on in an adjudicative proceeding and the rules published in an opinion, interpretive rules were plausibly exempted from such requirements by the draftsmen of the APA. However, in present FPC practice, where there is no adjudicative proceeding but only a rulemaking proceeding, merely the rate order and other orders associated therewith are promulgated as formal rules. The interpretive rules which go into the formulation and application of a rate model are not proposed or published as formal rules and are subject to only indirect attack in the rulemaking proceeding.