It's Time to Remove the 'Mossified' Procedures for FTC Rulemaking

Abstract

This article, prepared for The George Washington Law Review’s Symposium “The FTC at 100,” addresses the FTC’s rulemaking process — specifically the quasi-adjudicative process mandated by the Magnuson-Moss Warranty — Federal Trade Commission Improvement Act of 1975 and the additional procedures added by the Federal Trade Commission Improvements Act of 1980 (collectively called the “Magnuson-Moss Procedures”). The article compares how long it took the FTC to complete or terminate the rulemakings it undertook under the Magnuson-Moss Procedures (including amendments to previously issued rules) with the amount of time it took the FTC to issue rules under the “regular” Administrative Procedure Act (“APA”) notice-and-comment rulemaking process. This latter category includes rules now on the books that were either issued before the Magnuson-Moss Procedures, or after it — with special authorization from Congress. As the title indicates, the main finding is that the Magnuson-Moss Procedures take significantly longer — leading the author to advocate for allowing the FTC to use APA procedures, like most agencies, in its rulemaking while giving it the discretion to use procedures in addition to notice and comment when desirable.

Keywords: Rulemaking, Federal Trade Commission, FTC, Magnuson-Moss, Ossification, consumer protection

JEL Classification: D18