Administrative Procedure Act (1946)
Administrative Procedure Act (1946)
Jeffrey S. Lubbers
Excerpt from the Administrative Procedure Act
After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 [the formal hearing provisions] of this title apply instead of this subsection.
The Administrative Procedure Act (APA) (60 Stat. 237), enacted in 1946 and recodified in 1966, is the procedural roadmap for the federal executive branch. Unless another statute provides otherwise, every executive branch department and agency must follow the APA's minimum procedures for adjudication and rule making. It also establishes general ground rules for the judicial review of agency actions. Although it has been supplemented by several other laws discussed in this volume (e.g., the Freedom of Information Act, Regulatory Flexibility Act, and Administrative Dispute Resolution Act), it has been amended remarkably little since 1946, and its provisions have served as models for many other administrative procedure laws in the fifty states and countries around the world.
GENERAL STRUCTURE OF THE ACT
The APA has two major subdivisions: sections 551 through 559 deal in general with agency procedures, and sections 701 through 706 deal in general with judicial review. The latter sections restate the principles of judicial review contained in many statutes and judicial decisions, but leave the details regarding judicial review to be governed by other statutes or court decisions. In addition, several sections dealing with administrative law judges—special hearing officers with special independence—are scattered through title 5 of the United States Code.
RULE MAKING AND ADJUDICATION
The structure of the APA reflects the distinction between rule making and adjudication, with different sets of procedural requirements prescribed for each. Government agencies formulate and issue rules, statements designed to implement, interpret, or prescribe law or policy. Through rule making, government agencies can regulate the future conduct of persons. Rule making is essentially a legislative action because, like the making of laws, the making of rules is an action that becomes applicable in the future. In contrast to rule making, adjudication is a process of determining past and present rights and liabilities. The result of an adjudicative proceeding is the issuance of an order (rather than a rule).
The line separating the two types of agency action is not always clear, partly because of the sheer abundance and variety of an agency's actions. Most agencies use rule making to formulate future policy. However, adjudicative orders can also announce policies. Agencies normally use a combination of rule making and adjudication to carry out their programs.
FORMAL AND INFORMAL PROCEEDINGS
The APA subdivides the categories of rule making and adjudication into formal and informal proceedings. A rule-making or adjudication proceeding is considered formal when the proceeding is required by another statute to be "on the record after opportunity for an agency hearing." The APA prescribes complex procedures for hearings by administrative law judges in both formal rule making (a rarely used procedure) and formal adjudication. It requires relatively minimal procedures for informal rule making. The APA prescribes very few procedures for the remaining category of informal adjudication, which is by far the most common form of governmental action.
Section 553 sets forth the basic requirements for informal rule making, which is the most common form of rule making: An agency must place a notice of proposed rule making in the Federal Register , followed by an opportunity for written comment by interested persons. The rule must then be published, in most instances at least thirty days before it becomes effective. This process is often referred to as notice-and-comment rule making.
Section 701 states that judicial review of agency action is available unless a statute prevents such review or the action is committed by law to agency discretion. Preliminary or intermediate actions are ordinarily reviewable only on review of the final agency action. Section 702 deals with the issue of who has standing (i.e., the legal right to sue) to challenge agency action. It states that a person who suffers a legal wrong or who is negatively affected or aggrieved by agency action is entitled to judicial review of that action. Section 703 deals with the form of the judicial review proceeding and in which court it should be brought. Section 704 provides that judicial review is available only for final agency action. Section 705 authorizes a reviewing court to postpone the date on which an agency action will take effect or preserve the status or rights affected by an agency's order until completion of judicial review proceedings. Section 706 sets forth the scope of judicial review of agency actions. In general, the scope of review depends on the nature of the agency action under challenge. For example, that action may be a question of law, an exercise of discretion, or a determination of fact.
CIRCUMSTANCES LEADING TO THE ADOPTION OF THE ACT
Attempts to regularize federal administrative procedures go back at least to the 1930s. In 1932 the Supreme Court ruled that it was constitutional for Congress to assign the adjudication of so-called "public rights" cases to administrative agencies (Crowell v. Benson. ) This ruling confirmed the use of administrative adjudication. Early in 1939, at the suggestion of the attorney general, President Franklin D. Roosevelt requested the formation of the Attorney General's Committee on Administrative Procedure to study existing administrative procedures and to formulate recommendations. The committee produced a series of monographs on agency functions and submitted its final report to the president and Congress in 1941. These materials, plus extensive hearings held before a subcommittee of the Senate Committee on the Judiciary in 1941, are the primary historical sources for the Administrative Procedure Act.
Most legislative debate concerned the appropriateness of assigning adjudicative responsibilities to the many new agencies that had been created by the New Deal. The Attorney General Committee's study showed that the procedures used by agencies to decide cases and to make rules lacked basic uniformity. The study also showed that some agency hearing officers were not sufficiently independent of the investigators or prosecutors. The committee designed a compromise that would create trial-type procedures, establish quasi-independent "hearing examiners" to preside over and make initial decisions in such cases, and authorize judicial review in the regular federal courts. The rule-making procedures provoked little controversy during the debates, although decades later, as rule-making became much more common, other laws were passed that added more formality to the process. These include the Occupational Safety and Health Act and the Clean Air Act, and government-wide statutes such as the Regulatory Flexibility Act, Paperwork Reduction Act, and Unfunded Mandates Reform Act.
After President Truman signed the APA into law in June 1946, 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 that the purposes of the act were to: (1) require agencies to keep the public currently informed of their organization, procedures, and rules; (2) provide for public participation in the rule-making process; (3) prescribe uniform standards for the conduct of rule making and adjudicative proceedings; and (4) restate the law of judicial review.
EXPERIENCE UNDER THE ACT
In the years following enactment of the APA, the Supreme Court issued several decisions that promoted the applicability of the act, including decisions validating the act's due process protections (Wong Yang Sung v. McGrath, 1950), judicial review provisions (Universal Camera Corp. v. NLRB, 1951), and hearing examiner program (Ramspeck v. Federal Trial Examiners Conference, 1953).
The APA has been widely accepted ever since. The courts have enforced its provisions by making quite clear that the agencies must follow the APA's procedures when it is applicable. Significantly, the Supreme Court has also made the APA a "safe harbor" by ruling that lower courts may not require agencies to use procedures beyond those required by procedural provisions of the APA or other statutes (Vermont Yankee Nuclear Power Co. v. Natural Resources Defense Council, Inc., 1978). Congress regularly incorporates references to the APA in other legislation. Although commentators have noted some flaws, notably its lack of guidance on informal adjudication, many observers have praised its innovations, such as notice-and-comment rule making and administrative law judges. For example, the leading administrative scholar, Kenneth Culp Davis, called notice-and-comment procedures "one of the greatest inventions of modern government."
Only a few major amendments have been added to the APA. In 1966 the Freedom of Information Act was added to the provisions in section 552 that already called for the publication of certain government information. In 1976, as part of the Government in the Sunshine Act, a ban was added on ex parte communications to decision makers in formal proceedings. Also in that year, some technical amendments made it easier for challengers to sue the government. In 1978 the term "administrative law judge" was substituted for "hearing examiner." And in 1990 a few provisions were added by the Administrative Dispute Resolution Act.
RELATIONSHIP WITH OTHER LAWS
The APA is broadly related to numerous laws because many of its provisions must be triggered by another statute. The act is more directly related to such openness laws as the Freedom of Information Act, the Government in the Sunshine Act, the Federal Advisory Committee Act, and the Privacy Act. Its adjudication procedures have been supplemented by the Administrative Dispute Resolution Act. Its rule-making provisions have been supplemented by the Regulatory Flexibility Act and the Paperwork Reduction Act.
The APA has proved to be a durable and important force in regularizing the procedures of the federal bureaucracy. Its emphasis on transparency, fairness, and access to the courts has increased the accountability, fairness, efficiency, and acceptability of a wide range of government decision making.
See also: Administrative Dispute Resolution Act; Federal Tort Claims Act; freedom of Information Act; Negotiated Rulemaking Act; Paperwork Reduction Act; Regulatory Flexibility Act.
Davis, Kenneth Culp. Administrative Law Treatise, Supp. vol. 1, sec. 6.15. St. Paul, MN: West, 1970.
Lubbers, Jeffrey S. A Guide to Federal Agency Rulemaking. Chicago, IL: American Bar Association Publishing, 1998.
Shepherd, George B. "The Administrative Procedure Act Emerges from New Deal Politics." Northwestern Law Review 90 (1996): 1557-1683.