Introduction to the Administrative Procedure Act and Rulemaking Process
Overview
- Focus on Chapter 4: Regulatory and Rulemaking Process
- Part of a statutory interpretation course
- Introduction to the Administrative Procedure Act (APA)
- Discussion of notice and comment rulemaking
Administrative Procedure Act (APA)
- Passed in late 1940s, post-World War 2, and New Deal era
- Reaction to the New Deal's regulatory expansion
- Nature: Procedural statute, akin to Federal Rules of Civil Procedure but for regulatory agencies
- No substantive provisions or policy directives
- Provides procedures for rulemaking, enforcement, and adjudication
- Judicial Review: Right to seek review in Article III courts under sections 701-706
Key APA Sections
- 553: About rulemaking
- 554-558: Cover formal adjudication and rulemaking
- 701-706: Judicial review standards
Framework of the APA
- Four Types of Agency Actions
- Rulemaking
- Adjudication
- Both divided into formal and informal processes
Informal Rulemaking (Notice and Comment Rulemaking)
- Governed by Section 553
- Involves publishing a notice of proposed rule in the Federal Register
- Public comment period required (30 days minimum)
- Sources of comments:
- Regulated industry (often argue for scaling back)
- Citizen activist groups/public interest nonprofits (often argue for more stringent rules)
- Average citizens (range of quality from thoughtful to uninformed)
- Agency's Responsibility: Must respond to serious comments in their final rule
- Procedural Compliance: Failure to follow procedures can lead to legal challenges and rule invalidation
Informal Adjudication
- Defined as everything not classified as formal processes
- No procedural requirements from the APA
- Examples range from minor enforcement actions to welfare hearings
Formal Adjudication
- Resembles a trial with an administrative law judge
- Involves hearings, notice, representation by counsel, and evidence recording
- Not governed by Federal Rules of Civil or Criminal Procedure
Formal Rulemaking
- Follows procedures similar to formal adjudication
- Rarely used due to complexity, cost, and time
- Typically mandated only if specified by the enabling statute
Other APA Procedures
- Petitioning for Rulemaking: Individuals can formally request agencies to regulate
- Judicial Review: Possible for adverse decisions, subject to conditions like standing and deadlines
Limitations
- Certain agency actions may not be subject to judicial review
- Intangible decisions such as policy priorities
Conclusion
- The lecture provides a foundational understanding for analyzing cases related to agency rulemaking and adjudication processes
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