Difference between revisions of "Administrative Procedure Act"

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*Edward Rubin, [https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=2940&context=clr It’s Time to Make the Administrative Procedure Act Administrative], 89 Cornell L. Rev. 95 (2003).
 
*Edward Rubin, [https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=2940&context=clr It’s Time to Make the Administrative Procedure Act Administrative], 89 Cornell L. Rev. 95 (2003).
  
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*Michael Sant’Ambrogio & Glen Staszewski, [https://www.acus.gov/sites/default/files/documents/Public%20Engagement%20in%20Rulemaking%20Final%20Report.pdf Public Engagement with Agency Rulemaking] (Nov. 19, 2018) (report to ACUS).
 
*Reuel Schiller, [https://repository.uchastings.edu/cgi/viewcontent.cgi?article=1704&context=faculty_scholarship Rulemaking’s Promise: Administrative Law and Legal Culture in the 1960s and 1970s], 53 Admin. L. Rev. 1139 (2001).
 
*Reuel Schiller, [https://repository.uchastings.edu/cgi/viewcontent.cgi?article=1704&context=faculty_scholarship Rulemaking’s Promise: Administrative Law and Legal Culture in the 1960s and 1970s], 53 Admin. L. Rev. 1139 (2001).
  

Revision as of 15:09, 1 February 2019

5 U.S.C. §§ 551–559, 701–706, 1305, 3105, 3344, 5372, 7521 (2012); originally enacted by Pub. L. No. 79-404, 60 Stat. 237, Ch. 324, §§ 1–12, June 11, 1946.

The Administrative Procedure Act (APA) as originally enacted was repealed by Pub. L. No. 89-554, 80 Stat. 381, Sept. 6, 1966, as part of the general revision of title 5 of the United States Code. Its provisions were incorporated into title 5 of the United States Code. Although the original section numbers are used sometimes, it is actually an error to use the original section numbers unless one is referring to the APA prior to its codification in 1966. In this volume all references to the Act are to sections of title 5.

Section 552 has been revised significantly since 1946 and is commonly known as the Freedom of Information Act. Section 552a (the Privacy Act) was added to the APA in 1974 and has been amended several times since. Section 552b (the Government in the Sunshine Act) was added in 1976 and amended once. Sections 701–706 pertaining to judicial review are discussed and set forth separately in Judicial Review of Agency Action. Two significant laws relating to rulemaking and adjudication were enacted in 1990—the Administrative Dispute Resolution Act (5 U.S.C. §§ 571–584) and the Negotiated Rulemaking Act (5 U.S.C. §§ 561–570)—which are discussed separately.

Overview

Attempts to regularize federal administrative procedures go back at least to the 1930s. Early in 1939, at the suggestion of the attorney general, President Roosevelt asked the attorney general to appoint a distinguished committee to study existing administrative procedures and to formulate recommendations. The Attorney General’s Committee on Administrative Procedure, chaired by Dean Acheson, produced a series of monographs on agency functions and submitted its Final Report to the President and the Congress in 1941. These materials, as well as extensive hearings held before a subcommittee of the Senate Committee on the Judiciary in 1941, are primary historical sources for the APA.

The APA was signed into law by President Truman on June 11, 1946. In the months that followed, the Department of Justice compiled a manual of advice and interpretation of its various provisions. The Attorney General’s Manual on the Administrative Procedure Act, published in 1947, remains the principal guide to the structure and intent of the APA. The Manual states the purposes of the APA as follows:

  1. To require agencies to keep the public currently informed of their organization, procedures, and rules,
  2. To provide for public participation in the rulemaking process,
  3. To prescribe uniform standards for the conduct of formal rulemaking and adjudicatory proceedings (i.e., proceedings required by statute to be made on the record after opportunity for an agency hearing), and
  4. To restate the law of judicial review.

The APA imposes upon agencies certain procedural requirements for two modes of agency decision making: rulemaking and adjudication. In general, the term “agency” refers to any authority of the government of the United States, whether or not it is within or subject to review by another agency—but excluding the Congress, the courts, and the governments of territories, possessions, or the District of Columbia. Definitions of other terms may be found in section 551.

Structure of the Administrative Procedure Act

The APA has two major subdivisions: sections 551 through 559, dealing in general with agency procedures, and sections 701 through 706, dealing in general with judicial review. In addition, several sections dealing with administrative law judges (§§ 1305, 3105, 3344, 5372, and 7521) are scattered through title 5 of the United States Code.

The structure of the APA is shaped around the distinction between rulemaking and adjudication, with different sets of procedural requirements prescribed for each. Rulemaking is agency action that regulates the future conduct of persons through the formulation and issuance of an agency statement designed to implement, interpret, or prescribe law or policy. It is essentially legislative in nature because of its future general applicability and its concern for policy considerations. By contrast, adjudication is concerned with determination of past and present rights and liabilities. The result of an adjudicative proceeding is the issuance of an “order.” (Licensing decisions are considered to be adjudication.)

The line separating these two modes of agency action is not always clear because agencies engage in a great variety of actions. Most agencies use rulemaking to formulate future policy, though there is no bar to announcing policy statements in adjudicatory orders. Agencies normally use a combination of rulemaking and adjudication to effectuate their programs. The APA definition of a “rule,” somewhat confusingly, speaks of an “agency statement of general or particular applicability and future effect.” The words “or particular” were apparently included in the definition to encompass such actions as the setting of rates or the approval of corporate reorganizations, to be carried out under the relatively flexible procedures governing rulemaking.

Beyond the distinction between rulemaking and adjudication, the APA subdivides each of these categories of agency action into formal and informal proceedings. Whether a particular rulemaking or adjudication proceeding is considered to be “formal” depends on whether the proceeding is required by statute to be “on the record after opportunity for an agency hearing” (5 U.S.C. §§ 553(c), 554(a)). The APA prescribes elaborate procedures for both formal rulemaking and formal adjudication, and relatively minimal procedures for informal rulemaking. The APA prescribes virtually no procedures for the remaining category of informal adjudication, which is by far the most prevalent form of governmental action.

Rulemaking

Section 553 sets forth the basic requirements for rulemaking: notice of proposed rulemaking in the Federal Register, followed by an opportunity for some level of participation by interested persons, and finally publication of the rule, in most instances at least 30 days before it becomes effective. For a detailed discussion of rulemaking procedures, see Jeffrey Lubbers’s A Guide to Federal Agency Rulemaking.

Excluded from the coverage of the APA are rulemakings involving military or foreign affairs functions and matters relating to agency management or personnel, public property, loans, grants, benefits, or contracts. The APA’s general policy is to provide an opportunity for public participation in rulemaking, to foster the fair and informed exercise of agency authority; these exceptions are “narrowly construed and only reluctantly countenanced.” Am. Fed’n of Gov't Emps., AFL-CIO v. Block, 655 F.2d 1153 (D.C. Cir. 1981). They are neither mandatory nor intended to discourage agencies from using public participation procedures. On the contrary, when Congress enacted the APA, it encouraged agencies to use the notice-and-comment procedure in some excepted cases, and many agencies routinely do so in making certain kinds of exempted rules. ACUS encouraged this trend and called on Congress to eliminate or narrow several of these exemptions. “Regulatory reform” legislative proposals considered over the years have contained provisions to alter or eliminate several of these exemptions.

Most rulemaking proceedings involve informal rulemaking, where all that the APA requires for public participation is an opportunity to submit written data, views, or arguments; oral presentations may also be permitted. The published rule must incorporate a concise general statement of its basis and purpose. Despite the brevity of these requirements, Congress has routinely, through other statutes, added procedural requirements that affect various agency programs. These additional statutory requirements may apply to specific agencies or programs or may be government-wide (such as the Regulatory Flexibility Act). Recent presidents have also imposed additional requirements for rulemaking. See White House Orders, Bulletins, and Memoranda. Though courts have sometimes sought to add procedural requirements, the Supreme Court’s decision in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978), has, to a great extent, limited this kind of judicial activity. In Vermont Yankee, the Supreme Court held that where rulemaking is governed by the (informal) requirements of section 553, as in the case of the Nuclear Regulatory Commission’s regulation of nuclear power plants, the courts may not require additional procedures.

The APA also provides for formal rulemaking—a procedure employed when rules are required by statute to be made on the record after an opportunity for an agency hearing. Essentially, this procedure requires that the agency issue its rule after the kind of trial-type hearing procedures (§§ 556, 557) normally reserved for adjudicatory orders. The Supreme Court, in United States v. Florida East Coast Railway Co., 410 U.S. 224 (1973), held that such a procedure was required only where the statute involved specifically requires an “on the record” hearing. Because few statutes include this requirement, formal rulemaking is used infrequently.  However, numerous agency statutes (often called “hybrid rulemaking” statutes) do require some specific procedures beyond the basic notice-and-comment elements of informal rulemaking.

Negotiated Rulemaking

The Negotiated Rulemaking Act of 1990 establishes a statutory framework for the conduct of negotiated rulemaking, a procedure developed in large part through ACUS–sponsored research. As with other alternative means of dispute resolution (ADR), negotiated rulemaking uses consensual techniques to produce results, rather than an agency decision based upon its data and conclusions, hopefully aided by public input. Numerous agencies have successfully completed negotiated rules over the years, but it remains an exceptional technique for adopting rules.

The Negotiated Rulemaking Act clearly establishes regulatory agencies’ authority to use such consensual techniques as negotiated rulemaking without limiting agency innovation. It identifies criteria for the discretionary determination by agency heads of whether and when to use negotiated rulemaking and sets forth basic requirements for public notice and the conduct of meetings under the Federal Advisory Committee Act.

Adjudication

Sections 554, 556, and 557 apply to formal adjudication (i.e., to cases for which an adjudicatory proceeding is required by statute to be determined on the record after the opportunity for an agency hearing).  These sections apply, for example, to proceedings by certain agencies seeking to impose civil money penalties as part of a regulatory enforcement program.

Section 554(a) specifically exempts six types of proceedings from the requirements of these sections:

  • matters subject to a subsequent de novo trial in court;
  • certain personnel matters other than for administrative law judges;
  • decisions based solely on inspections, tests, or elections;
  • military or foreign affairs functions;
  • cases in which an agency acts as agent for a court; and
  • certification of worker representatives.

Section 554(b) specifies notice requirements. Section 554(c) provides for an opportunity for submission and consideration of facts, arguments, and informal settlements where practicable. Section 554(d) forbids presiding officers from engaging in ex parte (off-the-record) consultations on facts at issue in the case. The subsection also addresses “separation of functions” by restricting agency employees engaged in investigation or prosecution of a case from supervising the presiding officer or participating or advising in the decision in that or a factually related case (with certain exceptions). Section 554(e) authorizes agencies, in their discretion, to issue declaratory orders that would terminate a controversy or remove uncertainty with respect to matters required by statute to be determined on the record after opportunity for a hearing.

Sections 556 and 557 prescribe the specific procedures to be used in formal adjudication.  In brief, a trial-type hearing must be held, conducted either by some or all of the members of the agency or by an administrative law judge (ALJ) (appointed under 5 U.S.C. § 3105). An ALJ is normally the presiding officer in formal adjudication. The APA (§ 556(c)) spells out the powers and duties of ALJs, formerly called hearing examiners. It also provides for the independence of ALJs by protecting their tenure (5 U.S.C. § 7521) and pay (5 U.S.C. § 5372) and prohibiting inconsistent duties (5 U.S.C. § 3105). In addition, under 5 U.S.C. § 1305, the Office of Personnel Management has prescribed a special selection procedure for the appointment of ALJs. Currently, there are over 1,900 ALJs in the federal government, the vast majority of which are located in the Social Security Administration. In 2018, the Supreme Court held that ALJs are inferior officers under the Appointments Clause of the U.S. Constitution and must be appointed by the President or a head of a department. Lucia v. SEC, 138 S. Ct. 2044 (2018). Subsequently, President Trump issued Executive Order 13,843, Excepting Administrative Law Judges From the Competitive Service, which placed ALJs in the excepted service and afforded agency heads more flexibility in hiring decisions.

Section 556 also covers disqualification of presiding officers, burden of proof, and parties’ rights to cross-examination. It provides that the transcript of testimony and exhibits, together with all documents filed in the proceeding, constitutes the exclusive record for decision.

Section 557 provides that when, as is usually the case, a hearing is not conducted by the agency itself, the presiding officer (normally an ALJ) must issue an initial decision—unless the agency requires that the entire record be certified to the agency for decision. An initial decision automatically becomes the agency’s decision unless appealed or reviewed on motion of the agency. Section 557 provides, in general, an opportunity for parties to submit for consideration their own proposed findings and conclusions, or exceptions to decisions. The record must show the ruling on each finding, conclusion, or exception presented. Section 557(d) was added to the APA by the Government in the Sunshine Act in 1976 to prohibit ex parte communications relevant to the merits of a pending formal agency proceeding. However, where ex parte communications do take place, their content must be placed on the public record, and, if the communication was knowingly made by a party, the presiding officer may require the party to show cause why a decision should not be made adversely affecting the party’s interest. Most agencies have adopted procedures applicable to their formal hearings. The Manual for Administrative Law Judges contains a detailed discussion of procedures for the conduct of hearings and a collection of model forms.

Alternative Means of Dispute Resolution

The Administrative Dispute Resolution Act (ADRA) specifically provides agencies with the authority to employ mediation, arbitration, and other consensual methods of dispute resolution in resolving cases under the APA and in other kinds of agency disputes. The ADRA specifically establishes a federal policy encouraging ADR in place of more costly, time-consuming adjudication. While no agency is forced to use ADR techniques, the ADRA requires each agency head to undertake a review of typical agency litigation and administrative disputes to assess where ADR techniques will be useful.

Miscellaneous Provisions

Section 555 states various procedural rights of private parties, which may be incidental to rulemaking, adjudication, or the exercise of any other agency authority. Section 555(b) addresses appearances in agency proceedings by parties, counsel, and other interested persons. Section 555(c) provides that a person compelled to submit data or evidence is entitled to a copy or transcript, except that in nonpublic investigations this may be limited to a right to inspect the official transcript. Additional provisions of section 555 relate to subpoenas and to the requirement of prompt notice of denials of applications, petitions, or other requests made to agencies.

Section 558 is a rarely invoked section of the APA. Section 558(b) makes clear the requirement that agency rules, orders, and sanctions be within the jurisdiction delegated to the agency and otherwise authorized by law. Section 558(c) contains some special notice provisions and other procedural requirements for handling applications, suspensions, revocations, or license renewals.

Legislative History

The legislative history of the APA begins with the Final Report of the Attorney General’s Committee on Administrative Procedure (1941). This report led to the introduction in Congress of the so-called majority and minority bills, respectively designated as S. 675 and S. 674, 77th Cong., 1st Sess. These bills, together with S. 918, formed the basis for extensive hearings held in 1941 before a subcommittee of the Senate Committee on the Judiciary. In 1945, the House Committee on the Judiciary held brief hearings on various administrative procedure bills, of which H.R. 1203, 79th Cong., was the precursor of the APA as passed. Also in June 1945, the Senate Committee on the Judiciary issued a comparative print with comments, which is an essential part of the legislative history. The committee reports on the APA are S. Rep. No. 752 (1945) and H.R. Rep. No. 1980 (1946). In October 1945, at the request of the Senate Committee on the Judiciary, the Attorney General submitted a letter and attached memorandum that set forth the understanding of the Department of Justice as to the purpose and meaning of the various provisions of the bill (S.7). This letter and memorandum constitute Appendix B of the Senate Committee Report. They also appear as an appendix in the Attorney General’s Manual.

The Senate and House debates and the documents mentioned in the preceding paragraph, other than the Final Report of the Attorney General’s Committee, are compiled in S. Doc. No. 248, Administrative Procedure Act—Legislative History 1944-46 (1946). The Final Report was published as S. Doc. No. 8 (1941). The Attorney General’s Manual on the Administrative Procedure Act (1947) is a contemporaneous interpretive guide to the original language of the APA.

Individual agencies have adopted procedural rules within the framework of the APA for the conduct of rulemaking and adjudication.

The comprehensive A Guide to Federal Agency Rulemaking (5th ed. 2012) discusses the entire rulemaking process. It was published initially by ACUS and is now published by the ABA. ACUS also published a Manual for Administrative Law Judges (3d ed. 1993), which is a handbook of practice in the conduct of hearings.

ACUS has sponsored numerous studies of rulemaking and adjudication procedures and recommended a variety of improvements in agency practice. Its recommendations appeared in the Federal Register and may be found on its website.

Bibliography

Legislative History and Congressional Documents

  • Administrative Procedure in Government Agencies, S. Doc. No. 8 (1941) (Final Report of the Attorney General’s Committee on Administrative Procedure).
  • Report on S. 7, H.R. Rep. No. 1980 (1946).

ACUS Recommendations

Other Government Documents

Other Resources

Books

  • Alfred C. Aman & William T. Mayton, Hornbook on Administrative Law (West Acad. Publ’g, 3d ed. 2014).
  • Michael Herz, Richard Murphy & Kathryn Watts eds., A Guide to Judicial and Political Review of Federal Agencies (ABA, 2d ed. 2015).
  • William F. Fox, Understanding Administrative Law (LexisNexis, 6th ed. 2012).
  • William Funk & Richard Seamon, Administrative Law: Examples & Explanations (Aspen Publishers, 5th ed. 2015).
  • Ernest Gellhorn & Ronald Levin, Administrative Law and Process in a Nutshell (West Nutshell Series, 5th ed. 2006).
  • Jeffrey Litwak ed., A Guide to Federal Agency Adjudication (ABA, 2d ed. 2014).
  • Jeffrey S. Lubbers, A Guide to Federal Agency Rulemaking (ABA, 5th ed. 2012).
  • Richard J. Pierce, Administrative Law Treatise (Aspen Publishers, 5th ed. 2009).
  • Richard J. Pierce, Sidney A. Shapiro & Paul R. Verkuil, Administrative Law and Process (Found. Press, 5th ed. 2009).
  • Thomas O. Sargentich ed., Administrative Law Anthology (Anderson Publ’g Co. [now Lexis-Nexis], 1994).
  • Peter H. Schuck, Foundations of Administrative Law (LexisNexis, 3d ed. 2012).
  • Peter Strauss ed., Administrative Law Stories (Found. Press, 2006).
  • Peter L. Strauss, An Introduction to Administrative Justice in the United States (Carolina Acad. Press, 2d revision, 2002).
  • ABA Section of Admin. Law & Regulatory Practice, A Blackletter Statement of Federal Administrative Law (ABA, 2d ed. 2013) (1st ed. published at 54 Admin. L. Rev. 1 (2002)).

Periodicals (aside from law reviews generally)

  • Administrative Law Review (published by American University Washington College of Law and the ABA Section of Admin. Law & Regulatory Practice)
  • Developments in Administrative Law and Regulatory Practice (Annual series beginning 1998-99 and continuing to 2014) (Jeffrey Lubbers ed., ABA Section of Admin. Law & Regulatory Practice).
  • Bloomberg BNA, Administrative Law, Third Series: A multivolume loose-leaf service, updated monthly. The Desk Book includes coverage of key statutes, legislative history, implementation memoranda, and agency rules; the Digest system organizes administrative law into 14 major topics (e.g., Costs and Fees, Judicial Review, Rulemaking), with multiple subtopics for each; and the Decisions volumes report significant federal court and agency decisions on administrative procedure and judicial review. Digests of salient points of law are placed under the appropriate subtopics for easy retrieval. A 12-page newsletter, the AdLaw Bulletin, containing case highlights and stories on agency and legislative developments, accompanies each monthly release and is kept in separate binder. The Bulletin also contains practice-oriented articles by outside experts on hot topics.

Selected Articles and Other Documents

  • Michael Asimow, Interim-Final Rules: Making Haste Slowly, 51 Admin. L. Rev. 703 (1999).
  • William Funk, When Is a “Rule” a Regulation? Marking a Clear Line Between Nonlegislative Rules and Legislative Rules, 54 Admin. L. Rev. 659 (2002).
  • Jeffrey S. Lubbers, APA Adjudication: Is the Quest for Uniformity Faltering?, 10 Admin. L. J. Am. U. 65 (1996).
  • Jeffrey Lubbers, The Transformation of the U.S. Rulemaking Process—For Better or Worse, 34 Ohio N. Univ. L. Rev. 469 (2008).
  • Jeffrey Lubbers & Blake Morant, A Reexamination of Federal Agency Use of Declaratory Orders, 56 Admin. L. Rev. 1097 (2004).
  • John Manning, Nonlegislative Rules, 72 Geo. Wash. L. Rev. 893 (2004).
  • Thomas Merrill & Kathryn Watts, Agency Rules with the Force of Law: The Original Convention, 116 Harv. L. Rev. 467 (2002).
  • Elizabeth G. Porter & Kathryn A. Watts, Visual Rulemaking, 91 N.Y.U. L. Rev. 1183 (2016).
  • George Shepherd, Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics, 90 Nw. U. L. Rev. 1557 (1996).

Web Addresses of Note

  • ABA Administrative Procedure Database. Developed and maintained with the cooperation and support of the ABA Section of Administrative Law & Regulatory Practice and the Florida State University College of Law. Contains links to federal agency home pages, state resources, historical materials, and other useful resources.
  • Regulations.gov. The federal government’s “one-stop shop” for filing comments in rulemaking.

Agency Regulations

Statutory Provisions

Administrative Procedure Act

Title 5 U.S. Code

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