1. Administrative Procedure Act

• Pages: 1-176

1ADMINISTRATIVE PROCEDURE ACT

1

Administrative

Procedure

Act

Citations:

5 U.S.C. §§551-559, 701-706, 1305, 3105, 3344, 5372, 7521 (2000);

originally enacted June 11, 1946 by Pub.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The Administrative Procedure Act (APA), as originally enacted, was re-

pealed 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, in this volume all references to the Act

are to sections of title 5.

Section 552 has been revised significantly and is commonly known as

the “Freedom of Information Act.” Sections 552, 552a (the “Privacy Act”),

552b (the “Government in the Sunshine Act”), and sections 701-706 pertain-

ing to judicial review are discussed and set forth separately. Two significant

amendments to the rulemaking and adjudication procedures of the APA were

first enacted in 1990—the Administrative Dispute Resolution Act and the

Negotiated Rulemaking Act; the Congressional Review of Agency Rulemaking

Act was enacted more recently. All of these laws are discussed separately.

Overview:

Attempts to regularize federal administrative procedures go back at least

to the 1930s. Early in 1939, at the suggestion of the attorney general, Presi-

dent Roosevelt asked the attorney general to appoint a distinguished commit-

tee to study existing administrative procedures and to formulate

recommendations. The Attorney General’s Committee on Administrative Pro-

cedure, chaired by Dean Acheson, produced a series of monographs on agency

1

2ADMINISTRATIVE PROCEDURE ACT

1

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 (and reprinted in the Appendix), remains the principal guide to the

structure and intent of the APA. The Manual (page 9) 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.1 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 ad-

ministrative law judges (§§1305, 3105, 3344, 5372, and 7521) are scattered

through title 5 of the United States Code. The sections pertaining to judicial

review are discussed in Chapter 2 of this volume. As noted, sections 552,

552a, and 552b are also discussed in separate chapters, as are the new sections

added by the Administrative Dispute Resolution and Negotiated Rulemaking

Acts.

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

1See 5 U.S.C. §§551(1), 701(b)(1) for other specific exemptions.

3ADMINISTRATIVE PROCEDURE ACT

1

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 deter-

mination of past and present rights and liabilities. The result of an adjudica-

tive 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 a

clear one, because agencies engage in a great variety of actions. Most agen-

cies 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 encom-

pass such actions as the setting of rates or the approval of corporate reorgani-

zations, to be carried out under the relatively flexible procedures governing

rulemaking.2

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.3

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’ A Guide to Federal Agency Rulemaking, published by the

American Bar Association (4th ed. 2006).

2For discussion of the inclusion of “or particular” in the definition, see K.

DAVIS, 2 ADMINISTRATIVE LAW TREATISE §7:3 (2d ed. 1978); Morgan, Toward a Re-

vised Strategy for Ratemaking, 78 U. ILL. L. F. 21, 50 n.l43 (1978).

3See P. Verkuil, A Study of Informal Adjudication Procedures, 43 U. Chi.

L. Rev. 739 (1976), for a discussion of informal adjudication.