“The government cannot operate without agencies that exercise discretionary power. . . . Nonetheless, conferring too much discretion on an individual or an institution creates the potential for harm attributable to the abuse of discretion. The challenge is to balance the need for discretion with the need for checks on discretion at each level of decision making. Rules are an effective limit both on agency discretion and on the discretion of agency personnel, and the most powerful form of a rule is the legislative rule, which is adopted though a formal rulemaking process such as chapter 14; when valid, it can bind courts, members of the public, and the agency itself.” 

In the rules found here to be defective, the Department has afforded itself undue discretion by proposing rules that set no clearly defined limits on the exercise of authority, and that do not apprise regulated parties of the standards that may apply to them.

 

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