Information about Administrative Procedure Act

The federal Administrative Procedure Act (APA) of 1946 governs the way in which administrative agencies of the United States federal government may propose and establish regulations. The APA also sets up a process for federal courts to directly review agency decisions. As such, it is an important source of authority within federal American administrative law. The APA applies to both independent agencies and executive department agencies, and their subdivisions. U.S. Senator Pat McCarran called the APA "a bill of rights for the hundreds of thousands of Americans whose affairs are controlled or regulated" by federal government agencies. The text of the APA can be found under Title 5 of the United States Code, beginning at Section 500.

Historical background: growth of federal administrative agencies

The APA was enacted to review the modus operandi acceptable during a period of expanding federal governmental power, following the Great Depression and World War II. Beginning in 1933, Roosevelt and the Democratic Congress enacted several statutes that created new federal agencies. The statutes were part of Roosevelt’s New Deal legislative plan designed to deliver the United States from the social and economic hardship of the Great Depression.

In a law journal article on the history of the APA, Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics, 90 Nw. Univ. L. Rev. 1557 (1996), professor George Shepard discusses the contentious political environment from which the APA was born. Shepard claims that Roosevelt’s opponents and supporters fought over passage of the APA "in a pitched political battle for the life of the New Deal" itself. (Ibid at 1562.) Shepard does note, however, that a legislative balance was struck with the APA, expressing "the nation’s decision to permit extensive government, but to avoid dictatorship and central planning." (Ibid at 1559.)

A 1946 U.S. House of Representatives report discusses the 10-year period of "painstaking and detailed study and drafting" that went into the APA. (See Administrative Procedure Act, Report of the House Judiciary Committee, No. 1989, 79th Congress, 1946, at 8). Because of rapid growth in the administrative regulation of private conduct, Roosevelt ordered several studies of administrative methods and conduct during the early part of his four-term presidency. (Ibid.) Based on one study, Roosevelt commented that the practice of creating administrative agencies with the authority to perform both legislative and judicial work "threatens to develop a fourth branch of government for which there is no sanction in the Constitution."

In 1939, Roosevelt requested that Attorney General Frank Murphy form a committee to investigate practices and procedures in American administrative law and suggest improvements. That committee's report, The Final Report of the Attorney General's Committee on Administrative Procedure (Senate Document No. 8, 77th Congress, First Session, 1941) (see external link to the Final Report's text below), contains detailed information about the development and procedures of the federal agencies.

The Final Report defined a federal agency as a governmental unit with "the power to determine . . . private rights and obligations" by rulemaking or adjudication. (Ibid at 7.) The Final Report applied that definition to the largest units of the federal government, and identified "nineteen executive departments and eighteen independent agencies." (Ibid.) If various subdivisions of the larger units were considered, the total number of federal agencies at that time increased to 51. In reviewing the history of U.S. government agencies, the Final Report noted that almost all agencies had undergone changes in name and political function.

Of the 51 federal agencies discussed in the Final Report, 11 were created by statute in the period prior to the Civil War. In the period from 1865 to 1900, six new agencies were created. Most notable was the formation of the Interstate Commerce Commission, created in 1887 in response to widespread criticism of the railroad industry. The period of 1900 to 1940, however, saw the greatest expansion of federal administrative power - with 35 new agencies created by statute. 18 of these were created during the 1930s, from statutes enacted as part of Roosevelt’s New Deal legislative agenda. The Final Report made several recommendations about standardizing administrative procedures, but Congress delayed action because the U.S. entered World War Two.

The Committee on the Judiciary of the U.S. House of Representatives is currently undertaking a Administrative Law, Process and Procedure Project to determine what, if any, changes need to be made to the Administrative Procedure Act.

Basic purposes of the APA

Agencies are unique governmental bodies, exercising powers characteristic of all three branches of the United States federal government: judicial, legislative and executive. As recognized by President Franklin D. Roosevelt and others, the creation and function of federal agencies can cause separation of powers issues under the United States Constitution. To provide constitutional safeguards, the APA creates a framework for regulating agencies and their unique role. According to the Attorney General's Manual on the Administrative Procedure Act (1947) (see external link to the Manual's text below), drafted after the 1946 enactment of the APA, the basic purposes of the APA are: (1) to require agencies to keep the public informed of their organization, procedures and rules; (2) to provide for public participation in the rulemaking process; (3) to establish uniform standards for the conduct of formal rulemaking and adjudication; (4) to define the scope of judicial review.

The APA's provisions apply to many federal governmental institutions. The APA in section 551(1) defines an "agency" as "each authority of the Government of the United States, whether or not it is within or subject to review by another agency," with the exception of several enumerated authorities, including the U.S. Congress, U.S. courts, and governments of territories or possessions of the United States. Courts have also held that the U.S. President is not an agency under the APA. Franklin v. Mass., 505 U.S. 788 (1992).

The Final Report organized federal administrative action into two parts: adjudication and rulemaking. (p. 5) Agency adjudication was broken down further into two distinct phases of formal and informal adjudication. (Ibid.) Formal adjudication involved a trial-like hearing with witness testimony, a written record and a final decision. Under informal adjudication, however, agency decisions are made without formal trial-like procedures, using "inspections, conferences and negotiations" instead. (Ibid.) Because formal adjudication produces a record of proceedings and a final decision, it may be subject to judicial review. As for rulemaking resulting in agency rules and regulations, the Final Report noted that many agencies provided due process through hearings and investigations, but there was a need for well-defined, uniform standards for agency adjudication and rulemaking procedures.

APA's standard of judicial review

APA requires that in order to set aside agency action, the court must conclude that the regulation is "arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law."

Publication of regulations

Rules and regulations issued by federal administrative agencies are published chronologically (by date of issuance) in the Federal Register. Rules and regulations are then organized by topic (subject matter) in a separate publication called the Code of Federal Regulations. In comparing publication of regulations to publication of statutes, the Federal Register is analogous to the United States Statutes at Large and the Code of Federal Regulations is analogous to the United States Code.

See also

• Notice of Proposed Rulemaking (NPRM); Administrative law of the United States
• Administrative Law, Process and Procedure Project
• Regulatory Flexibility Act

External links

• Administrative Procedure Act
• Final Report of the Attorney General's Committee on Administrative Procedure
• Attorney General's Manual on the Administrative Procedure Act
• Legal Information Institute administrative law overview
• Key administrative law decisions by the US Supreme Court
• Federal administrative agency index via Washburn School of Law