Beyond the APA: rulemaking In the real world.

• Author: Craig, Robin Kundis
• Position: Administrative Procedure Act - Review

The federal Administrative Procedure Act (APA)(1) is, as federal statutes go, relatively short. Nevertheless, in its fourteen main statutory sections,(2) it explicitly defers to or references non-APA and non-APA-related law twenty-eight times, making it clear that the full import of its requirements cannot be determined without reference to other law.(3) This "other law" of course includes the federal Constitution; in addition, Congress and several presidents have been willing to modify or add to the procedures that federal agencies must follow. As a practical matter, a federal agency can almost never look solely at the APA and determine with certainty the procedures that it must follow for any given agency action.

Because of unfortunate but largely unavoidable constraints on time and focus, however, Administrative Law courses often leave law students with exactly the opposite impression. In particular, although Administrative Law texts do generally spend time with the largely settled constitutional law issues that allow the administrative state to exist, they otherwise tend to focus almost exclusively on the APA and to downplay the day-to-day importance of--and the wide variety of administrative law practice that results from--agencies' authorizing statutes, the various other statutes governing agency procedures, and Executive Orders.

Although he does not write for law students--or even for lawyers--and although he consciously confines his focus to federal agencies and to rulemaking, Cornelius M. Kerwin offers a corrective vision of administrative law in his newly revised Rulemaking: How Government Agencies Write Law and Make Policy.(4) Kerwin by no means ignores the APA and in fact discusses its provisions in some detail. However, he places the APA in its historical context, describing the 1946 act as only one (albeit important) step in the much longer development of administrative law and practice. As a result, instead of focusing on the APA's provisions, he emphasizes that "[c]ontemporary rulemaking is a highly developed process, subject to a complex web of legal requirements."(5)

While it is true that the basic rulemaking provisions of the APA have never been significantly amended in the more than fifty years since passage, we should not conclude that the act thoroughly dominates the making of rules today. Most important rulemaking is not currently conducted according to the minimalist model of the APA, if it ever was. Minor and routine rulemaking is also not carried out in tight accordance with the APA, but for different reasons. The fact that the relevant sections of the APA have never been extensively amended does not mean that Congress, the president, the courts, or the agencies themselves have not been busy altering rulemaking since soon after the act passed.(6) Nevertheless, Kerwin finds that these more recent alterations to administrative procedure share three common themes with the APA and the broader history of administrative rulemaking: information, participation, and accountability. These themes become the organizing principles of his later chapters.(7) Under the topic of information, Kerwin discusses the roles of agencies' authorizing statutes, the National Environmental Policy Act of 1969 (NEPA),(8) the Regulatory Flexibility Act (RFA),(9) the Paperwork Reduction Act (PRA),(10) and executive orders. His discussion of public participation in rulemaking expands on these provisions to include hybrid rulemaking, the Federal Advisory Committee Act (FACA),(11) the Negotiated Rulemaking Act of 1990,(12) the Freedom of Information Act (FOIA),(13) the Privacy Act of 1974,(14) the Government in the Sunshine Act,(15) and the Small Business Regulatory Enforcement Fairness Act of 1996.(16) Finally, his discussion of accountability focuses on the presidential and congressional uses of review requirements--especially review procedures through the Office of Management and Budget (OMB), the various forms of the legislative veto, and a new discussion of Congress's "Corrections Day"--before turning to a more standard (at least for lawyers and law students) discussion of judicial review under the APA itself. By the end of Rulemaking, Kerwin has thoroughly supported his view of the APA as merely a minimum starting point for agency procedures and has given his reader an appreciation of the wide variety of requirements, pressures, and agency responses that go into rulemaking.

Beyond this corrective vision of the APA's role in agency procedure, the value and the power of Rulemaking for both law students and practitioners lies mainly in Kerwin's research regarding, and descriptions of, the specific practices that federal agencies use in promulgating their rules. Particularly valuable in this regard is Kerwin's chapter on "The Management of Rulemaking,"(17) which is also one of the most extensively revised and updated chapters in the new edition. For the original 1994 edition,(18) Kerwin both reviewed agency documents and surveyed experts in thirty-five federal agencies that had "substantial rulemaking responsibilities, as measured by the volume of rulemaking reported in the 1990-1991 regulatory program of the president."(19) For the 1999 revision, he added new agency documents and interviewed personnel in the various agencies for updates on their procedures.(20) The results often read like an insider's report on what federal agencies really do when rulemaking. For example, when discussing how federal agencies set priorities for writing rules, Kerwin offers the following new specific illustration:

To better handle external pressures, the Occupational Safety and Health Administration (OSHA) brought "stakeholders" into the priority-setting process. In 1994 and 1995, as part of a National Performance Review initiative, OSHA consulted with other federal agencies, labor unions, industry leaders, professional groups, and academia to identify the worst occupational hazards. Then in late 1995 OSHA announced that eighteen priority hazards had been identified by this process and that it would take both regulatory and nonregulatory actions to deal with them.(21) Environmental and natural resource law practitioners and students will be happy to learn that environmental agencies feature prominently in Kerwin's research; the agencies he surveyed included...