Understanding the Administrative Procedure Act

Jun 1, 2025

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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