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
  1. Rulemaking
  2. 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)
  • Typically 3-9 months
• 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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