Administrative Procedure Act
5 U.S.C. §§ 551–559, 701–706, 1305, 3105, 3344, 5372, 7521 (2012); originally enacted June 11, 1946, by Pub.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The Administrative Procedure Act (APA), as originally enacted, was repealed by Pub.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.
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.
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.
I. Legislative History
1. Administrative Procedure Act—Legislative History 1944-46, S. Doc. No. 248, 79th Cong., 2d Sess. (1946).
2. 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).
3. 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.
4. 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
II. Other Government Documents
1. Administrative Conference of the United States, selected recommendations (http://www.acus.gov/recommendations):
68-1 Adequate Hearing Facilities
68-5 Representation of the Poor in Agency Rulemaking of Direct Consequence to Them
68-6 Delegation of Final Decisional Authority Subject to Discretionary Review by the Agency
69-8 Elimination of Certain Exemptions from the APA Rulemaking Requirements
70-3 Summary Decision in Agency Adjudication
70-4 Discovery in Agency Adjudication
71-1 Interlocutory Appeal Procedures
71-3 Articulation of Agency Policies
71-6 Public Participation in Administrative Hearings
72-1 Broadcast of Agency Proceedings
72-5 Procedures for the Adoption of Rules of General Applicability
73-5 Elimination of the “Military or Foreign Affairs Function” Exemption from APA Rulemaking Requirements
73-6 Procedures for Resolution of Environmental Issues in Licensing Proceedings
74-1 Subpoena Power in Formal Rulemaking and Formal Adjudication
76-2 Strengthening the Informational and Notice-Giving Functions of the “Federal Register”
76-3 Procedures in Addition to Notice and the Opportunity for Comment in Informal Rulemaking
76-5 Interpretive Rules of General Applicability and Statements of General Policy
77-3 Ex parte Communications in Informal Rulemaking Proceedings
78-3 Time Limits on Agency Actions
79-l Hybrid Rulemaking Procedures of the Federal Trade Commission
79-4 Public Disclosure Concerning the Use of Cost—Benefit and Similar Analyses in Regulation
80-4 Decisional Officials’ Participation in Rulemaking Proceedings
80-6 Intragovernmental Communications in Informal Rulemaking Proceedings
82-4 Procedures for Negotiating Proposed Regulations
83-2 The “Good Cause” Exemption from APA Rulemaking Requirements
83-3 Agency Structures for Review of Decisions of Presiding Officers under the Administrative Procedure Act
85-2 Agency Procedures for Performing Regulatory Analysis of Rules
85-5 Procedures for Negotiating Proposed Regulations
86-2 Use of Federal Rules of Evidence in Federal Agency Adjudications
86-6 Petitions for Rulemaking
87-1 Priority Setting and Management of Rulemaking by the Occupational Safety and Health Administration
88-7 Valuation of Human Life in Regulatory Decision making
88-9 Presidential Review of Agency Rulemaking
90-8 Rulemaking and Policymaking in the Medicaid Program
92-2 Agency Policy Statements
93-4 Improving the Environment for Agency Rulemaking
95-3 Review of Existing Agency Regulations
95-4 Procedures for Noncontroversial and Expedited Rulemaking
2011-1 Legal Considerations in e-Rulemaking
2011-2 Rulemaking Comments
2011-4 Agency Use of Video Hearings: Best Practices and Possibilities for Expansion
2011-5 Incorporation by Reference
2011-8 Agency Innovations in E-Rulemaking
2012-1 Regulatory Analysis Requirements
2012-2 Midnight Rules
2013-2 Benefit-Cost Analysis
2013-4 Administrative Record in Informal Rulemaking
2013-5 Social Media in Rulemaking
2014-3 Guidance in the Rulemaking Process
2014-4 “Ex Parte” Communications in Informal Rulemaking
2014-6 Petitions for Rulemaking
2015-3 Declaratory Orders
2017-2 Negotiated Rulemaking and Other Options for Public Engagement
2017-3 Plain Language in Regulatory Drafting
2017-5 Agency Guidance Through Policy Statements
2017-6 Learning Through Regulatory Experience
2017-7 Regulatory Waivers and Exemptions
2018-2 Severability in Agency Rulemaking
2. U.S. Department of Justice, Attorney General’s Manual on the Administrative Procedure Act (1947), reprinted in Appendix 2 of this chapter.
3. U.S. Office of the Federal Register, Document Drafting Handbook.
III. Other Resources
1. Alfred C. Aman & William T. Mayton, HORNBOOK ON ADMINISTRATIVE LAW (West Academic Publishing, 3d ed. 2014).
2. Michael Herz, Richard Murphy & Kathryn Watts eds., A GUIDE TO JUDICIAL AND POLITICAL REVIEW OF FEDERAL AGENCIES (Am. Bar. Ass’n, 2d ed. 2015).
3. William F. Fox, UNDERSTANDING ADMINISTRATIVE LAW (LexisNexis, 6th ed. 2012).
4. William Funk & Richard Seamon, ADMINISTRATIVE LAW: EXAMPLES & EXPLANATIONS (Aspen Publishers, 5th ed. 2015).
5. Ernest Gellhorn & Ronald Levin, ADMINISTRATIVE LAW AND PROCESS IN A NUTSHELL (West Nutshell Series, 5th ed. 2006).
6. Jeffrey Litwak ed., A GUIDE TO FEDERAL AGENCY ADJUDICATION (Am. Bar. Ass’n, 2d ed. 2014).
7. Jeffrey S. Lubbers, A GUIDE TO FEDERAL AGENCY RULEMAKING (Am. Bar Ass’n, 5th ed. 2012).
8. Richard J. Pierce, ADMINISTRATIVE LAW TREATISE (Aspen Publishers, 5th ed. 2009).
9. Richard J. Pierce, Sidney A. Shapiro & Paul R. Verkuil, ADMINISTRATIVE LAW AND PROCESS (Foundation Press, 5th ed. 2009).
10. Thomas O. Sargentich ed., ADMINISTRATIVE LAW ANTHOLOGY (Anderson Publishing Co. [now Lexis-Nexis], 1994).
11. Peter H. Schuck, FOUNDATIONS OF ADMINISTRATIVE LAW (LexisNexis, 3d ed. 2012).
12. Peter Strauss ed., ADMINISTRATIVE LAW STORIES (Foundation Press 2006).
13. Peter L. Strauss, AN INTRODUCTION TO ADMINISTRATIVE JUSTICE IN THE UNITED STATES (Carolina Academic Press, 2d revision, 2002).
14. 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)).
b. Periodicals (aside from law reviews generally)
1. Administrative Law Review (published by American University Washington College of Law and the ABA Section on Administrative Law and Regulatory Practice) (Website: http://www.wcl.american.edu/pub/journals/alr/).
2. Administrative & Regulatory Law News (quarterly newsletter of ABA Section on Administrative Law and Regulatory Practice) (also available from 1996 online at http://www.abanet.org/adminlaw/news).
3. 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).
4. 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.
c. Selected Articles and Other Documents
1. Michael Asimow, Interim-Final Rules: Making Haste Slowly, 51 ADMIN. L. REV. 703 (1999).
2. Kent Barnett, Resolving the ALJ Quandary, 66 VAND. L. REV. 797 (2013).
3. Leland E. Beck, Agency Practices and Judicial Review of Administrative Records in Informal Rulemaking (report to Admin. Conf. of the U.S.) (May 14, 2013), available at https://www.acus.gov/sites/default/files/documents/Agency%20Practices%20and%20Judicial%20Review%20of%20Administrative%20Records%20in%20Informal%20Rulemaking.pdf.
4. 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).
5. Barbara Brandon & Robert Carlitz, Online Rulemaking and Other Tools for Strengthening Our Civil Infrastructure, 54 ADMIN. L. REV. 1421 (2002).
6. Cary Coglianese & David Lehr, Regulating by Robot: Administrative Decision Making in the Machine-Learning Era, 105 GEO. L.J. 1147 (2017).
7. Roni A. Elias, The Legislative History of the Administrative Procedure Act, 27 FORDHAM ENVTL. L. REV. 207 (2016)
8. Daniel A. Farber & Anne Joseph O’Connell, The Lost World of Administrative Law, 92 TEX. L. REV. 1137 (2014).
9. 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).
10. David L. Franklin, Legislative Rules, Nonlegislative Rules, and the Perils of the Short Cut, 120 YALE L.J. 276 (2010).
11. William Funk, Slip Slidin’ Away: The Erosion of APA Adjudication, 122 PENN. ST. L. REV. 141 (2017).
12. William Funk, When Is a “Rule” a Regulation? Marking a Clear Line Between Nonlegislative Rules and Legislative Rules, 54 ADMIN. L. REV. 659 (2002).
13. Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245 (2001).
14. Jeffrey S. Lubbers, APA Adjudication: Is the Quest for Uniformity Faltering?, 10 ADMIN. L.J. AM. U. 65 (1996).
15. Jeffrey Lubbers, The Transformation of the U.S. Rulemaking Process—For Better or Worse, 34 OHIO N. UNIV. L. REV. 469 (2008).
16. Jeffrey Lubbers & Blake Morant, A Reexamination of Federal Agency Use of Declaratory Orders, 56 ADMIN. L. REV. 1097 (2004).
17. Elizabeth Magill, Agency Choice of Policymaking Form, 71 U. Chi.
L. Rev. 1383 (2004).
18. John Manning, Nonlegislative Rules, 72 GEO. WASH. L. REV. 893 (2004).
19. Nina A. Mendelson, Should Mass Comments Count?, 2 MICH. J. ENVTL. & ADMIN. L. 173 (2012).
20. Thomas Merrill & Kathryn Watts, Agency Rules with the Force of Law: The Original Convention, 116 HARV. L. REV. 467 (2002).
21. Beth Simone Noveck, The Electronic Revolution in Rulemaking, 53 EMORY L.J. 433 (2004).
22. Elizabeth G. Porter & Kathryn A. Watts, Visual Rulemaking, 91 N.Y.U. L. REV. 1183 (2016).
23. Edward Rubin, It’s Time to Make the Administrative Procedure Act Administrative, 89 CORNELL L. REV. 95 (2003).
24. Reuel Schiller, Rulemaking’s Promise: Administrative Law and Legal Culture in the 1960s and 1970s, 53 ADMIN. L. REV. 1139 (2001).
25. Jason A. Schwartz & Richard L. Revesz, Petitions for Rulemaking (Nov. 5, 2014) (report to Admin. Conf. of the U.S.).
26. Esa Sferra-Bonistalli, “Ex Parte” Communications in Informal Rulemaking (May 1, 2014) (report to Admin. Conf. of the U.S.).
27. Sidney Shapiro, Elizabeth Fisher & Wendy Wagner, The Enlightenment of Administrative Law: Looking Inside the Agency for Legitimacy, 47 WAKE FOREST L. REV. 463 (2012).
28. George Shepherd, The Administrative Procedure Act Emerges from New Deal Politics, 90 NW. L. REV. 1557 (1996).
29. 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.).
30. Wendy Wagner, The Participation-Centered Model Meets Administrative Process, 2013 WIS. L. REV. 671.
31. Wendy Wagner et al., Dynamic Rulemaking, 92 N.Y.U. L. REV. 183 (2017).
32. Christopher J. Walker, Modernizing the Administrative Procedure Act, 69 ADMIN. L. REV. 629 (2017).
d. Web Addresses of Note
1. Overview of Federal Administrative Law. D.C. Law Librarians’ Society compilation. http://www.llsdc.org/federal-administrative-law-a-brief-overview
2. 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/
3. Administrative Conference of the United States. Contains links to past
(1968-95) and current activities. https://www.acus.gov
4. Congress, www.Congress.gov
5. Government Accountability Office (GAO) Reports. http://www.gao.gov
6. Government Printing Office. Lots of official gov’t documents. http://www.gpo.gov/fdsys/
7. LSU’s government website. A complete link to federal agencies and subunits from all three branches. http://www.lib.lsu.edu/gov/index.html
8. National Partnership for Reinventing Government (the Clinton “Reinventing Government Initiative”). Archived at http://govinfo.library.unt.edu/npr/index.htm
9. 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
10. Regulations.Gov. The federal government’s “one-stop shop” for filing comments in rulemaking. www.regulations.gov
11. Regulatory Information Service Center (Unified Agenda of Regs. 1995-present). www.reginfo.gov
12. SBA Office of Advocacy. Lots of useful links. www.sba.gov/advo
13. The Regulatory Group, Inc. Useful links from a private consulting firm. www.reg-group.com
14. 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.
15. U.S. Court of Appeals for the D.C. Circuit. http://www.cadc.uscourts.gov/internet/home.nsf
16. U.S. House of Representatives Internet Law Library—U.S. Code (searchable form). http://uscode.house.gov/search/criteria.shtml
17. U.S. Office of Government Ethics (regulations, opinions), www.usoge.gov
18. U.S. Supreme Court. www.supremecourtus.gov/index.html
19. 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
20. 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
Architectural and Transportation Barriers Compliance Board . . . . . . . . . . . . . . . . . . . . . . . . . 36 C.F.R. Part 1150 Bureau of Consumer Financial Protection. . . . . . . . . . . . . . . . . . 12 C.F.R. Parts 1012, 1074
Coast Guard (Homeland Security) . . . . . . . . . 33 C.F.R. Part 20, 46 C.F.R. §§ 5.501-.807
National Oceanic and Atmospheric Administration. . . . . . . . . . . . . . . . . . . .15 C.F.R. Part 904 (Subpt. C)
Commodity Futures Trading Commission . . . . . 17 C.F.R. Parts 10, 12, 13
Consumer Product Safety Commission . . . . . . . . . . . . . . . 16 C.F.R. Parts 1025, 1051, 1052
Environmental Protection Agency . . . . . . . . 40 C.F.R. Parts 22, 24, 25, 104, 108, 164, 209
Federal Communications Commission . . . . . . . . . . . . . . . . 47 C.F.R. Part 1
Federal Deposit Insurance Corporation . . . . . . . . . . . . . 12 C.F.R. Part 308
Federal Emergency Management Agency . . . . . . . . . 44 C.F.R. Parts 1, 68
Federal Energy Regulatory Commission . . . . . . . . . . . . 18 C.F.R. Part 385
Federal Labor Relations Authority . . . . . . . . . . . 5 C.F.R. Parts 2422, 2423
Federal Maritime Commission . . . . . . . . . . . . . . . . . . . . 46 C.F.R. Part 502
Federal Mine Safety and Health Review Commission . . . . . . . . . . . . . . . . . . . . . . . . . . 29 C.F.R. Part 2700
Federal Reserve Board . . . . . . . . . . . . . . . . . . . . . 12 C.F.R. Parts 262, 263
Federal Trade Commission . . . . . . . . . 16 C.F.R. Part 1, Subpts. B & C; Part 3, § 4.7
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
Housing and Urban Development . . . . . . 24 C.F.R. Part 26, § 3282.152
Interior . . . . . . . . . . . . . . . . . . . . . . . . 43 C.F.R. Part 4; 50 C.F.R. Part 11
International Trade Commission . . . . . . . . . . . . . . . . . . 19 C.F.R. Part 210
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
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
Merit Systems Protection Board . . . . . . . 5 C.F.R. Parts 1201, 1203, 1209
National Credit Union Administration . . . . . . . . . . . . . . 12 C.F.R. Part 747
National Labor Relations Board . . . . . . . . . . . . . . 29 C.F.R. Parts 101, 102
National Transportation Safety Board . . . . . . . . . . . . . . 49 C.F.R. Part 821
Nuclear Regulatory Commission . . . . . . . . . . . . . . . . . . . . 10 C.F.R. Part 2
Occupational Safety and Health
Administration (Labor) . . . . . . . . . . . . . . . 29 C.F.R. Parts 1905, 1911
Occupational Safety and Health Review on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 C.F.R. Part 2200
Postal Regulatory Commission . . . . . . . . . 39 C.F.R. Part 3001, Subpt. A
Postal Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 C.F.R. Chapter 1, Subchapter N
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
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
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
1. Administrative Procedure Act, 5 U.S.C. §§ 551, 553–59, 701–06,1305, 3105, 3344, 5372, 7521.
2. U.S. Department of Justice, Attorney General’s Manual on the Administrative Procedure Act (1947).
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
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§ 7521. Actions against administrative law judges