1.1 The Historical Background
During most of the years that the District of Columbia was governed by appointed Commissioners, there were no statutory procedures for the adoption of administrative regulations or ordinances. The Congress, while retaining overall legislative control over the District, had delegated certain "police powers" to the Commissioners.
Regulations and ordinances adopted by the Commissioners under that authority were promulgated in the form of Commissioner's Orders. There were no provisions for public notice or comment, except in certain instances where a specific law required a public hearing or newspaper publication.
On July 19, 1954, the first step toward expanded public notice of the activities of the District government was taken with the publication of the first issue of the District of Columbia Register. Although the Register did not become the official vehicle for public notice of proposed administrative rulemaking until 15 years later, it was (and still is) the most accessible source for researching the ordinances and regulations of the District of Columbia. In order to determine what the non-statutory law in the District was before 1954, it is most often necessary to engage in a difficult and very tedious search of the minutes of the meetings of the Commissioners, which are stored at the National Archives.
Many of the old Commissioners' Orders form the basis for regulations which are now a part of the D.C. Municipal Regulations. The authority to amend the old Commissioner's Orders and enact new regulations has been divided between the Mayor and the Council (See §§1.8–1.10). In addition, a procedure for the adoption of administrative rules by the Mayor and District agencies was added by the Congress in 1968. Under the present law, the administrative rules of the District cannot be changed, repealed, or enlarged without public notice and an opportunity for public comment.
1.2 The D.C. Administrative Procedure ACT
In 1968, the Congress enacted Public Law 90-614, the "District of Columbia Administrative Procedure Act" (D.C. Code, §1-1501, et seq.). The law, which was signed by the President on October 21, 1968, actually took effect one year later on October 21, 1969. The act provided a statutory framework for District government administrative practice and procedure. In addition to requiring public notice of agency rulemaking activities and publication of rules, the act provides for adversary hearings and procedures in "contested cases," and judicial review of administrative actions.
The D.C. "APA" continued the District of Columbia Register and made it the official vehicle for publication of government actions, including rules and regulations, hearing notices, Mayor's Orders, and other documents of general public interest.
It should be noted that the Congress enacted the D.C. Administrative Procedure Act over the rather strong objections of the local government, as represented in Congressional hearings by the Corporation Counsel. The APA legislation was viewed as unnecessary and a potential source of confusion.
The implementation of the APA by the reluctant District government was unenthusiastic. The task of compliance was viewed as a largely non-legal, administrative matter of publishing notices in the Register. There was no uniform format for the notices, and the difference between notice of proposed action and publication of final rules was often ignored.
The D.C. APA And The Federal APA Are Different!
A number of the problems that have arisen with the implementation of the D.C. APA are caused by the fact that it is different from the federal APA which is part of the U.S. Code. In a city dominated by the presence of the federal government and federal government attorneys (keeping in mind also that the District was generally treated as just another "agency" of the federal government), the distinctions between the federal and District APA's were often overlooked or ignored.
It is important for attorneys and District government officials dealing with the D.C. APA to be aware of the areas in which the two laws are dissimilar. Persons dealing with legal issues under the D.C. APA should not assume that interpretations of the federal APA are applicable.
Both the D.C. Administrative Procedure Act and the 1975 "District of Columbia Codification Act" (D.C. Law 1-19) required the preparation and publication of all District rules and regulations in a "code of municipal regulations."
The APA requirement for a compilation of all District regulations was partially fulfilled by the publication of a series of "special editions" of the D.C. Register, which later were known as the D.C. Rules and Regulations (DCRR). The compilation was uncoordinated and published at the last minute.
Even though a number of rules were not published, and thus "died" under the provisions of the APA "sunset" clause, many of those invalid rules were followed by agencies for years without regard to their legal effectiveness. The DCRR was never supplemented and updated on a regular basis, and many rules and regulations were never published in the DCRR, as required by law. The "D.C. Municipal Code" required by D.C. Law 1-19 was never published.
A copy of the Administrative Procedure Act, as amended by the D.C. Document Act, is included in this manual (chapter 7).
1.3 The D.C. Documents ACT And Mayor's Order 88-104
In December, 1978, the Council enacted the "District of Columbia Documents Act" (D.C. Law 2-153, effective 3-6-79), which re-established the requirement for a comprehensive compilation of District rules and regulations to be called the District of Columbia Municipal Regulations (DCMR).
The responsibility for preparing and publishing this official compilation was vested in a new agency called the D.C. Office of Documents and Administrative Issuances (ODAI). The function of publishing the D.C. Register (DCR) was transferred to the Office of Documents and Administrative Issuances (ODAI), giving that office responsibility for and control of the administrative process for the publication and codification of all District administrative rules and regulations.
The authority and functions of the Office of Documents and Administrative Issuances (ODAI) are set forth in the "D.C. Documents Act." A copy of this statute, as codified in the D.C. Code is included in this manual (chapter 7).
The Administrative Issuance power was added to the Office of Documents under Mayor's Order 88-104 in 1988, creating the Office of Documents and Administrative Issuances.