Difference between revisions of "Administrative Procedure Act"

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*USA.gov. The federal government’s comprehensive portal for government documents. www.usa.gov
 
*USA.gov. The federal government’s comprehensive portal for government documents. www.usa.gov
  
===Agency Procedural Rules:===
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===Agency Procedural Rules===
 
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{| class="wikitable" style="text-align: center"
 
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7 C.F.R. §§ 1.27-.28, 1.130-.160, Parts 47, 50, 202, 900
 
7 C.F.R. §§ 1.27-.28, 1.130-.160, Parts 47, 50, 202, 900
!
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|Federal Mine Safety and Health Review Commission
!
+
 
!
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29 C.F.R. Part 2700
 +
|National Oceanic and Atmospheric Administration (Commerce)
 +
15 C.F.R. Part 904, Subpt. C
 
|-
 
|-
 
|Architectural and Transportation Barriers Compliance Board
 
|Architectural and Transportation Barriers Compliance Board
  
 
36 C.F.R. Part 1150
 
36 C.F.R. Part 1150
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|Federal Reserve Board
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|
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12 C.F.R. Parts 262, 263
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|Nuclear Regulatory Commission
 +
 
 +
10 C.F.R. Part 2
 
|-
 
|-
 
|Bureau of Consumer Financial Protection
 
|Bureau of Consumer Financial Protection
  
 
12 C.F.R. Parts 1012, 1074
 
12 C.F.R. Parts 1012, 1074
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|Federal Trade Commission
|
 
|
 
|-
 
|
 
|
 
|
 
|
 
|}
 
  
Coast Guard (Homeland Security) . . . . . . . . . 33 C.F.R. Part 20, 46 C.F.R. §§ 5.501-.807
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16 C.F.R. Part 1, Subpts. B & C; Part 3, § 4.7
 +
|Occupational Safety and Health Administration (Labor)
  
Commerce
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29 C.F.R. Parts 1905, 1911
 +
|-
 +
|Coast Guard (Homeland Security)
  
National Oceanic and Atmospheric Administration. . . . . . . . . . . . . . . . . . . .15 C.F.R. Part 904 (Subpt. C)
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33 C.F.R. Part 20, 46 C.F.R. §§ 5.501-.807
 +
|'''Health and Human Services'''
  
Commodity Futures Trading Commission . . . . . 17 C.F.R. Parts 10, 12, 13
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Centers for Medicare and Medicaid Services
  
Consumer Product Safety Commission . . . . . . . . . . . . . . . 16 C.F.R. Parts 1025, 1051, 1052
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42 C.F.R. Part 402, Part 405, Subpts. H & I
  
Environmental Protection Agency . . . . . . . . 40 C.F.R. Parts 22, 24, 25, 104, 108, 164, 209
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Food and Drug Administration
  
Federal Communications Commission . . . . . . . . . . . . . . . . 47 C.F.R. Part 1
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21 C.F.R. Parts 10–17
 +
|Occupational Safety and Health Review Commission
  
Federal Deposit Insurance Corporation . . . . . . . . . . . . . 12 C.F.R. Part 308
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29 C.F.R. Part 2200
 +
|-
 +
|Commodity Futures Trading Commission
  
Federal Emergency Management Agency . . . . . . . . . 44 C.F.R. Parts 1, 68
+
17 C.F.R. Parts 10, 12, 13
 +
|Housing and Urban Development
 +
24 C.F.R. Part 26, § 3282.152
 +
|Postal Regulatory Commission
  
Federal Energy Regulatory Commission . . . . . . . . . . . . 18 C.F.R. Part 385
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39 C.F.R. Part 3001, Subpt. A
 +
|-
 +
|Consumer Product Safety Commission
  
Federal Labor Relations Authority . . . . . . . . . . . 5 C.F.R. Parts 2422, 2423
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16 C.F.R. Parts 1025, 1051, 1052
 +
|Interior
 +
43 C.F.R. Part 4; 50 C.F.R. Part 11
 +
|Postal Service
 +
39 C.F.R. Chapter 1, Subchapter N
 +
|-
 +
|Environmental Protection Agency
  
Federal Maritime Commission . . . . . . . . . . . . . . . . . . . . 46 C.F.R. Part 502
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40 C.F.R. Parts 22, 24, 25, 104, 108, 164, 209
 +
|International Trade Commission
 +
19 C.F.R. Part 210
 +
|Securities and Exchange Commission
 +
17 C.F.R. Part 201, Subpt. D
 +
|-
 +
|Federal Communications Commission
  
Federal Mine Safety and Health Review Commission . . . . . . . . . . . . . . . . . . . . . . . . . . 29 C.F.R. Part 2700
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47 C.F.R. Part 1
 +
|'''Justice'''
 +
Drug Enforcement Administration
  
Federal Reserve Board . . . . . . . . . . . . . . . . . . . . . 12 C.F.R. Parts 262, 263
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21 C.F.R. §§ 1301.41-.46, §§ 1303.31-.37, §§ 1308.41-.45, §§ 1309.51-.55,  
  
Federal Trade Commission . . . . . . . . . 16 C.F.R. Part 1, Subpts. B & C; Part 3, § 4.7
+
§§ 1312.41-.47, §§ 1313.51-.57, §§ 1316.41-.68
  
Health and Human Services
+
Newspaper Preservation Act
  
Centers for Medicare and Medicaid Services . . . . . . . . . . 42 C.F.R. Part 402, Part 405, Subpts. H & I
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28 C.F.R. §§ 48.10
 +
|Small Business Administration
 +
13 C.F.R. Parts 134, 142
 +
|-
 +
|Federal Deposit Insurance Corporation
  
Food and Drug Administration . . . . . . . . . . . . . 21 C.F.R. Parts 10–17
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12 C.F.R. Part 308
 +
|'''Labor'''
 +
Black Lung Benefits Cases
  
Housing and Urban Development . . . . . . 24 C.F.R. Part 26, § 3282.152
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20 C.F.R. Part 725, Subpts. D, E, F
  
Interior . . . . . . . . . . . . . . . . . . . . . . . . 43 C.F.R. Part 4; 50 C.F.R. Part 11
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Longshoremen’s and Harbor Workers’ Compensation Cases
  
International Trade Commission . . . . . . . . . . . . . . . . . . 19 C.F.R. Part 210
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20 C.F.R. Part 702, Subpt. C
  
Justice
+
Office of Federal Contract Compliance
  
Drug Enforcement Administration . . . . . . .21 C.F.R. §§ 1301.41-.46, §§ 1303.31-.37, §§ 1308.41-.45, §§ 1309.51-.55, §§ 1312.41-.47, §§ 1313.51-.57, §§ 1316.41-.68
+
41 C.F.R. §§ 60-1.21-.26, Part 60-30
  
Newspaper Preservation Act . . . . . . . . . . . . . . . . . 28 C.F.R. §§ 48.10
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Other Cases
  
Labor
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29 C.F.R. Parts 6, 8
 +
|Social Security Administration
 +
20 C.F.R. §§ 404.900-.996, §§ 416.1400-.1494
 +
|-
 +
|Federal Emergency Management Agency
  
Black Lung Benefits Cases . . . . . . . . . . . . 20 C.F.R. Part 725, Subpts. D, E, F
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44 C.F.R. Parts 1, 68
 +
|Merit Systems Protection Board
 +
5 C.F.R. Parts 1201, 1203, 1209
 +
|State
 +
22 C.F.R. Part 128
 +
|-
 +
|Federal Energy Regulatory Commission
 +
18 C.F.R. Part 385
 +
|National Credit Union Administration
 +
12 C.F.R. Part 747
 +
|Surface Transportation Board
 +
49 C.F.R. Parts 1110-1119
 +
|-
 +
|Federal Labor Relations Authority
 +
5 C.F.R. Parts 2422, 2423
 +
|National Labor Relations Board
 +
29 C.F.R. Parts 101, 102
 +
|'''Transportation'''
 +
Federal Aviation Administration
  
Longshoremen’s and Harbor Workers’ Compensation Cases . . . . . . . . . . . . . 20 C.F.R. Part 702, Subpt. C
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14 C.F.R. Part 11, Part 13, Subpt. D
  
Office of Federal Contract Compliance . . . . . . . . . . . . . 41 C.F.R. §§ 60-1.21-.26, Part 60-30
+
Federal Highway Administration
  
Other Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 C.F.R. Parts 6, 8
+
49 C.F.R. Parts 386, 389
  
Merit Systems Protection Board . . . . . . . 5 C.F.R. Parts 1201, 1203, 1209
+
Maritime Administration
  
National Credit Union Administration . . . . . . . . . . . . . . 12 C.F.R. Part 747
+
46 C.F.R. Part 201
  
National Labor Relations Board . . . . . . . . . . . . . . 29 C.F.R. Parts 101, 102
+
National Highway Traffic Safety Administration
  
National Transportation Safety Board . . . . . . . . . . . . . . 49 C.F.R. Part 821
+
49 C.F.R. Parts 511, 553
  
Nuclear Regulatory Commission . . . . . . . . . . . . . . . . . . . . 10 C.F.R. Part 2
+
Office of the Secretary
  
Occupational Safety and Health
+
14 C.F.R. Part 302; 49 C.F.R. Part 5
  
Administration (Labor) . . . . . . . . . . . . . . . 29 C.F.R. Parts 1905, 1911
+
Pipeline and Hazardous Materials Safety Administration
  
Occupational Safety and Health Review on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 C.F.R. Part 2200
+
49 C.F.R. Part 106, Part 107, Subpt. D
 
+
|-
Postal Regulatory Commission . . . . . . . . . 39 C.F.R. Part 3001, Subpt. A
+
|Federal Maritime Commission
 
+
46 C.F.R. Part 502
Postal Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 C.F.R. Chapter 1, Subchapter N
+
|National Transportation Safety Board
 
 
Securities and Exchange Commission . . . . . 17 C.F.R. Part 201, Subpt. D  
 
 
 
Small Business Administration . . . . . . . . . 13 C.F.R. Parts 134, 142
 
 
 
Social Security Administration . . . . . . . . . . . . 20 C.F.R. §§ 404.900-.996, §§ 416.1400-.1494; 42 C.F.R.
 
 
 
State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 C.F.R. Part 128
 
 
 
Surface Transportation Board . . . . . . . . . . . . . 49 C.F.R. Parts 1110-1119
 
 
 
Transportation
 
 
 
Federal Aviation Administration 14 C.F.R. Part 11, Part 13, Subpt. D
 
 
 
Federal Highway Administration . . . . . . . . . 49 C.F.R. Parts 386, 389
 
 
 
Maritime Administration . . . . . . . . . . . . . . . . . . . . . 46 C.F.R. Part 201
 
  
National Highway Traffic Safety Administration . . . . . . . . . . . . . . . . . . . . 49 C.F.R. Parts 511, 553
+
49 C.F.R. Part 821
 +
|'''Treasury'''
 +
Alcohol and Tobacco Tax and Trade Bureau
  
Office of the Secretary . . . . . . . 14 C.F.R. Part 302; 49 C.F.R. Part 5
+
27 C.F.R Part 71
  
Pipeline and Hazardous Materials Safety Administration... . . . . . . . . 49 C.F.R. Part 106, Part 107, Subpt. D
+
Comptroller of the Currency
  
Treasury
+
12 C.F.R. Part 19
  
Alcohol and Tobacco Tax and Trade Bureau . . . . . . 27 C.F.R Part 71
+
Internal Revenue Service
  
Comptroller of the Currency . . . . . . . . . . . . . . . . . . . 12 C.F.R. Part 19
+
26 C.F.R. Part 601; 31 C.F.R. Part 10, Subpt. D
 +
|}   
  
Internal Revenue Service . . . . . . . . . . . . 26 C.F.R. Part 601; 31 C.F.R. Part 10, Subpt. D
+
Justice           
  
 
==Appendix==
 
==Appendix==

Revision as of 18:52, 10 August 2018

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

The Administrative Procedure Act (APA), as originally enacted, was repealed by Pub. L. No. 89-554, 80 Stat. 381 (September 6, 1966), as part of the general revision of title 5 of the United States Code. Its provisions were incorporated into the sections of title 5 listed above. 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. These sections and sections 701–706 pertaining to judicial review are discussed and set forth separately in this book. 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 below.

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, plus extensive hearings held before a subcommittee of the Senate Committee on the Judiciary in 1941, are primary historical sources for the Administrative Procedure Act.

The Administrative Procedure Act 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 Act 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).

(4) To restate the law of judicial review.

The Act 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 Administrative Procedure Act 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 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 Act prescribes elaborate procedures for both formal rulemaking and formal adjudication, and relatively minimal procedures for informal rulemaking. Virtually no procedures are prescribed by the APA 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, published by the American Bar Association (5th ed. 2012).

Excluded from the coverage of the Act are rulemakings involving military or foreign affairs functions and matters relating to agency management or personnel, public property, loans, grants, benefits, or contracts. These exceptions to the Act’s general policy of providing an opportunity for public participation in rulemaking, to foster the fair and informed exercise of agency authority, are “narrowly construed and only reluctantly countenanced.”  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. The Administrative Conference 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, it is important to note that 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 governmentwide (such as the Regulatory Flexibility Act). Recent presidents have also imposed additional requirements for rulemaking. (See White House Orders and Memoranda on Rulemaking.) 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 (discussed below). 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 do so, 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 Administrative Conference–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. The Act identifies criteria for the discretionary determination by agency heads of whether and when to use negotiated rulemaking. It also 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 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 where 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 (appointed under 5 U.S.C. § 3105). An administrative law judge (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 “Officers of the United States” under the Appointments Clause and must be appointed by the President or a head of a department (Lucia v. S.E.C., 138 S. Ct. 2044 (2018)). Subsequently, the Trump Administration issued Executive Order 13,843, 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 (A list of citations appears at the end of the chapter.). 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 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 legislation 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 legislation 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 Administrative Procedure Act begins with the Final Report of the Attorney General’s Committee on Administrative Procedure in 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., 1st Sess., was the precursor of the Act 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 Act are S. Rep. No. 752, 79th Cong., 1st Sess. and H.R. Rep. No. 1980, 79th Cong., 2d Sess. In October 1945, the attorney general, at the request of the Senate Committee on the Judiciary, submitted a letter, with memorandum attached, setting 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 and also appear as an appendix in the Attorney General’s Manual.

The Senate and House debates plus 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, 79th Cong., 2d Sess. (1946), titled Administrative Procedure Act—Legislative History 1944-46. The Final Report was published as S. Doc. No. 8, 77th Cong., 1st Sess. (1941). The Attorney General’s Manual on the Administrative Procedure Act (1947) is a contemporaneous interpretive guide to the original language of the Act.

Individual agencies have adopted, within the framework of the APA, procedural rules for the conduct of rulemaking and adjudication. A list of citations to these rules appears below.

The comprehensive A Guide to Federal Agency Rulemaking (5th ed. 2012) discusses the entire rulemaking process. It was published initially by the Administrative Conference and now by the ABA. The Conference also published a Manual for Administrative Law Judges (3d ed. 1993). The Manual is a handbook of practice in the conduct of hearings. Persons interested in negotiated rulemaking or ADR in APA adjudication should consult the separate ACUS Sourcebooks on these subjects and the other materials listed in the Bibliography sections of those Sourcebook chapters.

The Administrative Conference also 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 volume one of the Code of Federal Regulations.

Bibliography

Legislative History

  • Administrative Procedure Act—Legislative History 1944-46, S. Doc. No. 248, 79th Cong., 2d Sess. (1946).
  • Administrative Procedure in Government Agencies, S. Doc. No. 8, 77th Cong., 1st Sess. (1941) (Final Report of the Attorney General’s Committee on Administrative Procedure).
  • House of Representatives Committee on the Judiciary, Report on S. 7, H.R. Rep. No. 1980, 79th Cong., 2d Sess. (1946), reprinted in S. Doc. No. 248 (item 1, above) and in Pike and Fischer Administrative Law (2d), Desk Book Stat. 51.
  • Senate Committee on the Judiciary, Report on S. 7, Rep. No. 752, 79th Cong., 1st Sess. (1945), reprinted in S. Doc. No. 248 (item 1, above) and in Pike and Fischer Administrative Law (2d), Desk Book, Stat. 11.3

Other Government Documents

Administrative Conference of the United States Recommendations

68-1 Adequate Hearing Facilities 87-1  Priority Setting and Management of Rulemaking by the Occupational Safety and Health Administration
68-5 Representation of the Poor in Agency Rulemaking of Direct Consequence to Them 88-7  Valuation of Human Life in Regulatory Decision making
68-6 Delegation of Final Decisional Authority Subject to Discretionary Review by the Agency 88-9  Presidential Review of Agency Rulemaking
69-8 Elimination of Certain Exemptions from the APA Rulemaking Requirements 90-8  Rulemaking and Policymaking in the Medicaid Program
70-3 Summary Decision in Agency Adjudication 92-2  Agency Policy Statements
70-4 Discovery in Agency Adjudication 93-4  Improving the Environment for Agency Rulemaking
71-1 Interlocutory Appeal Procedures 95-3 Review of Existing Agency Regulations
71-3 Articulation of Agency Policies 95-4 Procedures for Noncontroversial and Expedited Rulemaking
71-6 Public Participation in Administrative Hearings 2011-1 Legal Considerations in e-Rulemaking
72-1 Broadcast of Agency Proceedings 2011-2 Rulemaking Comments
72-5  Procedures for the Adoption of Rules of General Applicability 2011-4 Agency Use of Video Hearings: Best Practices and Possibilities for Expansion
73-5 Elimination of the “Military or Foreign Affairs Function” Exemption from APA Rulemaking Requirements 2011-5 Incorporation by Reference
73-6 Procedures for Resolution of Environmental Issues in Licensing Proceedings 2011-8  Agency Innovations in E-Rulemaking
74-1 Subpoena Power in Formal Rulemaking and Formal Adjudication 2012-1 Regulatory Analysis Requirements
76-2 Strengthening the Informational and Notice-Giving Functions of the “Federal Register” 2012-2 Midnight Rules
76-3 Procedures in Addition to Notice and the Opportunity for Comment in Informal Rulemaking 2013-2  Benefit-Cost Analysis
76-5  Interpretive Rules of General Applicability and Statements of General Policy 2013-4 Administrative Record in Informal Rulemaking
77-3  Ex parte Communications in Informal Rulemaking Proceedings 2013-5 Social Media in Rulemaking
78-3  Time Limits on Agency Actions 2014-3 Guidance in the Rulemaking Process
79-l  Hybrid Rulemaking Procedures of the Federal Trade Commission 2014-4 “Ex Parte” Communications in Informal Rulemaking
79-4 Public Disclosure Concerning the Use of Cost—Benefit and Similar Analyses in Regulation 2014-6  Petitions for Rulemaking
80-4  Decisional Officials’ Participation in Rulemaking Proceedings 2015-3  Declaratory Orders
80-6  Intragovernmental Communications in Informal Rulemaking Proceedings 2017-2 Negotiated Rulemaking and Other Options for Public Engagement
82-4  Procedures for Negotiating Proposed Regulations 2017-3 Plain Language in Regulatory Drafting
83-2 The “Good Cause” Exemption from APA Rulemaking Requirements 2017-5 Agency Guidance Through Policy Statements
85-5  Procedures for Negotiating Proposed Regulations 2017-6 Learning Through Regulatory Experience
86-2  Use of Federal Rules of Evidence in Federal Agency Adjudications 2017-7 Regulatory Waivers and Exemptions
86-6  Petitions for Rulemaking 2018-2 Severability in Agency Rulemaking

U.S. Department of Justice, Attorney General’s Manual on the Administrative Procedure Act (1947).

U.S. Office of the Federal Register, Document Drafting Handbook.

Other Resources

Books

  • Alfred C. Aman & William T. Mayton, HORNBOOK ON ADMINISTRATIVE LAW (West Academic Publishing, 3d ed. 2014).
  • Michael Herz, Richard Murphy & Kathryn Watts eds., A GUIDE TO JUDICIAL AND POLITICAL REVIEW OF FEDERAL AGENCIES (Am. Bar. Ass’n, 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 (Am. Bar. Ass’n, 2d ed. 2014).
  • Jeffrey S. Lubbers, A GUIDE TO FEDERAL AGENCY RULEMAKING (Am. Bar Ass’n, 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 (Foundation Press, 5th ed. 2009).
  • Thomas O. Sargentich ed., ADMINISTRATIVE LAW ANTHOLOGY (Anderson Publishing Co. [now Lexis-Nexis], 1994).
  • Peter H. Schuck, FOUNDATIONS OF ADMINISTRATIVE LAW (LexisNexis, 3d ed. 2012).
  • Peter Strauss ed., ADMINISTRATIVE LAW STORIES (Foundation Press 2006).
  • Peter L. Strauss, AN INTRODUCTION TO ADMINISTRATIVE JUSTICE IN THE UNITED STATES (Carolina Academic Press, 2d revision, 2002).
  • Section of Administrative Law and Regulatory Practice, A BLACKLETTER STATEMENT OF FEDERAL ADMINISTRATIVE LAW (2d ed.) (Am. Bar. Ass’n, 2d ed. 2013) (1st ed. originally 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 on Administrative Law and Regulatory Practice)
  • Developments in Administrative Law and Regulatory Practice (Annual series beginning 1998-99 and continuing to 2014) (Jeffrey Lubbers ed., ABA, Section of Administrative Law and 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).
  • Kent Barnett, Resolving the ALJ Quandary, 66 VAND. L. REV. 797 (2013).
  • Eric Biber & J.B. Ruhl, The Permit Power Revisited: The Theory and Practice of Regulatory Permits in the Administrative State, 54 DUKE L.J. 133 (2014).
  • Barbara Brandon & Robert Carlitz, Online Rulemaking and Other Tools for Strengthening Our Civil Infrastructure, 54 ADMIN. L. REV. 1421 (2002).
  • Cary Coglianese & David Lehr, Regulating by Robot: Administrative Decision Making in the Machine-Learning Era, 105 GEO. L.J. 1147 (2017).
  • Roni A. Elias, The Legislative History of the Administrative Procedure Act, 27 FORDHAM ENVTL. L. REV. 207 (2016)
  • Daniel A. Farber & Anne Joseph O’Connell, The Lost World of Administrative Law, 92 TEX. L. REV. 1137 (2014).
  • Cynthia R. Farina, Mary Newhart, Josiah Heidt & CeRI, Rulemaking vs. Democracy: Judging and Nudging Public Participation That Counts, 2 MICH. J. ENVTL. & ADMIN. L. 123 (2012).
  • David L. Franklin, Legislative Rules, Nonlegislative Rules, and the Perils of the Short Cut, 120 YALE L.J. 276 (2010).
  • William Funk, Slip Slidin’ Away: The Erosion of APA Adjudication, 122 PENN. ST. L. REV. 141 (2017).
  • William Funk, When Is a “Rule” a Regulation? Marking a Clear Line Between Nonlegislative Rules and Legislative Rules, 54 ADMIN. L. REV. 659 (2002).
  • Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245 (2001).
  • 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).
  • Elizabeth Magill, Agency Choice of Policymaking Form, 71 U. Chi. L. Rev. 1383 (2004).
  • John Manning, Nonlegislative Rules, 72 GEO. WASH. L. REV. 893 (2004).
  • Nina A. Mendelson, Should Mass Comments Count?, 2 MICH. J. ENVTL. & ADMIN. L. 173 (2012).
  • Thomas Merrill & Kathryn Watts, Agency Rules with the Force of Law: The Original Convention, 116 HARV. L. REV. 467 (2002).
  • Beth Simone Noveck, The Electronic Revolution in Rulemaking, 53 EMORY L.J. 433 (2004).
  • Elizabeth G. Porter & Kathryn A. Watts, Visual Rulemaking, 91 N.Y.U. L. REV. 1183 (2016).
  • Edward Rubin, It’s Time to Make the Administrative Procedure Act Administrative, 89 CORNELL L. REV. 95 (2003).
  • Reuel Schiller, Rulemaking’s Promise: Administrative Law and Legal Culture in the 1960s and 1970s, 53 ADMIN. L. REV. 1139 (2001).
  • Jason A. Schwartz & Richard L. Revesz, Petitions for Rulemaking (Nov. 5, 2014) (report to Admin. Conf. of the U.S.).
  • Esa Sferra-Bonistalli, “Ex Parte” Communications in Informal Rulemaking (May 1, 2014) (report to Admin. Conf. of the U.S.).
  • Sidney Shapiro, Elizabeth Fisher & Wendy Wagner, The Enlightenment of Administrative Law: Looking Inside the Agency for Legitimacy, 47 WAKE FOREST L. REV. 463 (2012).
  • George Shepherd, The Administrative Procedure Act Emerges from New Deal Politics, 90 NW. L. REV. 1557 (1996).
  • Kevin Stack, Guidance in the Rulemaking Process: Evaluating Preambles, Regulatory Text, and Freestanding Documents as Vehicles for Regulatory Guidance (Jun. 10, 2014) (report to Admin. Conf. of the U.S.).
  • Wendy Wagner, The Participation-Centered Model Meets Administrative Process, 2013 WIS. L. REV. 671.
  • Wendy Wagner et al., Dynamic Rulemaking, 92 N.Y.U. L. REV. 183 (2017).
  • Christopher J. Walker, Modernizing the Administrative Procedure Act, 69 ADMIN. L. REV. 629 (2017).

Web Addresses of Note

  • ABA Administrative Procedure Database. Developed and maintained with the cooperation and support of the American Bar Association’s Section of Administrative Law and Regulatory Practice and the Florida State University College of Law. Contains links to federal agency home pages, state resources, historical materials (such as Attorney General’s Manual on the APA), and other useful links. www.law.fsu.edu/library/admin/
  • Government Printing Office. Lots of official gov’t documents. http://www.gpo.gov/fdsys/
  • National Partnership for Reinventing Government (the Clinton “Reinventing Government Initiative”). Archived at http://govinfo.library.unt.edu/npr/index.htm
  • Office of the Federal Register. Contains (searchable) Federal Register (1994 forward), Code of Federal Regulations, Semiannual Regulatory Agenda, Public Laws (1994 forward), U.S. Government Manual (1995 forward), Weekly Compilation of Presidential Docs. (1993 forward). http:// www.archives.gov/federal-register
  • Regulations.gov. The federal government’s “one-stop shop” for filing comments in rulemaking.
  • Regulatory Information Service Center (Unified Agenda of Regs. 1995-present). www.reginfo.gov
  • SBA Office of Advocacy. Lots of useful links. www.sba.gov/advo
  • The Regulatory Group, Inc. Useful links from a private consulting firm. www.reg-group.com
  • The Center for Regulatory Effectiveness, http://thecre.com/. Business-oriented group site with a wealth of useful information on regulation, especially the Data Quality Act. Has extensive archive of “Inside Administration” papers at http://www.thecre.com/ombpapers/centralrev.html.
  • U.S. Court of Appeals for the D.C. Circuit. http://www.cadc.uscourts.gov/internet/home.nsf
  • U.S. House of Representatives Internet Law Library—U.S. Code (searchable form). http://uscode.house.gov/search/criteria.shtml
  • U.S. Office of Government Ethics (regulations, opinions), www.usoge.gov
  • U.S. Supreme Court. www.supremecourtus.gov/index.html
  • University of Virginia School of Law Federal Administrative Decisions and Actions Page. Contains links to the various administrative actions that fall outside the scope of the Code of Federal Regulations or Federal Register. http://www2.lib.virginia.edu/govtinfo/fed_decisions_agency.html
  • USA.gov. The federal government’s comprehensive portal for government documents. www.usa.gov

Agency Procedural Rules

Agriculture

7 C.F.R. §§ 1.27-.28, 1.130-.160, Parts 47, 50, 202, 900

Federal Mine Safety and Health Review Commission

29 C.F.R. Part 2700

National Oceanic and Atmospheric Administration (Commerce)

15 C.F.R. Part 904, Subpt. C

Architectural and Transportation Barriers Compliance Board

36 C.F.R. Part 1150

Federal Reserve Board

12 C.F.R. Parts 262, 263

Nuclear Regulatory Commission

10 C.F.R. Part 2

Bureau of Consumer Financial Protection

12 C.F.R. Parts 1012, 1074

Federal Trade Commission

16 C.F.R. Part 1, Subpts. B & C; Part 3, § 4.7

Occupational Safety and Health Administration (Labor)

29 C.F.R. Parts 1905, 1911

Coast Guard (Homeland Security)

33 C.F.R. Part 20, 46 C.F.R. §§ 5.501-.807

Health and Human Services

Centers for Medicare and Medicaid Services

42 C.F.R. Part 402, Part 405, Subpts. H & I

Food and Drug Administration

21 C.F.R. Parts 10–17

Occupational Safety and Health Review Commission

29 C.F.R. Part 2200

Commodity Futures Trading Commission

17 C.F.R. Parts 10, 12, 13

Housing and Urban Development

24 C.F.R. Part 26, § 3282.152

Postal Regulatory Commission

39 C.F.R. Part 3001, Subpt. A

Consumer Product Safety Commission

16 C.F.R. Parts 1025, 1051, 1052

Interior

43 C.F.R. Part 4; 50 C.F.R. Part 11

Postal Service

39 C.F.R. Chapter 1, Subchapter N

Environmental Protection Agency

40 C.F.R. Parts 22, 24, 25, 104, 108, 164, 209

International Trade Commission

19 C.F.R. Part 210

Securities and Exchange Commission

17 C.F.R. Part 201, Subpt. D

Federal Communications Commission

47 C.F.R. Part 1

Justice

Drug Enforcement Administration

21 C.F.R. §§ 1301.41-.46, §§ 1303.31-.37, §§ 1308.41-.45, §§ 1309.51-.55,

§§ 1312.41-.47, §§ 1313.51-.57, §§ 1316.41-.68

Newspaper Preservation Act

28 C.F.R. §§ 48.10

Small Business Administration

13 C.F.R. Parts 134, 142

Federal Deposit Insurance Corporation

12 C.F.R. Part 308

Labor

Black Lung Benefits Cases

20 C.F.R. Part 725, Subpts. D, E, F

Longshoremen’s and Harbor Workers’ Compensation Cases

20 C.F.R. Part 702, Subpt. C

Office of Federal Contract Compliance

41 C.F.R. §§ 60-1.21-.26, Part 60-30

Other Cases

29 C.F.R. Parts 6, 8

Social Security Administration

20 C.F.R. §§ 404.900-.996, §§ 416.1400-.1494

Federal Emergency Management Agency

44 C.F.R. Parts 1, 68

Merit Systems Protection Board

5 C.F.R. Parts 1201, 1203, 1209

State

22 C.F.R. Part 128

Federal Energy Regulatory Commission

18 C.F.R. Part 385

National Credit Union Administration

12 C.F.R. Part 747

Surface Transportation Board

49 C.F.R. Parts 1110-1119

Federal Labor Relations Authority

5 C.F.R. Parts 2422, 2423

National Labor Relations Board

29 C.F.R. Parts 101, 102

Transportation

Federal Aviation Administration

14 C.F.R. Part 11, Part 13, Subpt. D

Federal Highway Administration

49 C.F.R. Parts 386, 389

Maritime Administration

46 C.F.R. Part 201

National Highway Traffic Safety Administration

49 C.F.R. Parts 511, 553

Office of the Secretary

14 C.F.R. Part 302; 49 C.F.R. Part 5

Pipeline and Hazardous Materials Safety Administration

49 C.F.R. Part 106, Part 107, Subpt. D

Federal Maritime Commission

46 C.F.R. Part 502

National Transportation Safety Board

49 C.F.R. Part 821

Treasury

Alcohol and Tobacco Tax and Trade Bureau

27 C.F.R Part 71

Comptroller of the Currency

12 C.F.R. Part 19

Internal Revenue Service

26 C.F.R. Part 601; 31 C.F.R. Part 10, Subpt. D

Justice

Appendix

Administrative Procedure Act

Title V, U. S. Code

Chapter 5—Administrative Procedure

§ 551. Definitions

§ 552. Public information; agency rules, opinions, orders, records, and proceedings

§ 552a. Records about individuals

§ 552b. Open meetings

§ 553. Rule making

§ 554. Adjudications

§ 555. Ancillary matters

§ 556. Hearings; presiding employees; powers and duties; burden of proof; evidence; record as basis of decision

§ 557. Initial decisions; conclusiveness; review by agency; submissions by

parties; contents of decisions; record

§ 558. Imposition of sanctions; determination of applications for licenses; suspension, revocation, and expiration of licenses

§ 559. Effect on other laws; effect of subsequent statute

* * * *

§ 1305. Administrative law judges

* * * *

§ 3105. Appointment of administrative law judges

* * * *

§ 3344. Details; administrative law judges

* * * *

§ 5372. Administrative law judges

* * * *

§ 7521. Actions against administrative law judges