Welcome to the second installment of Ballotpedia’s Learning Journey on the Administrative Procedure Act (APA)!
Today we review the administrative processes outlined in the APA, including rulemaking, adjudication, and judicial review of agency actions.
Rulemaking
The APA established two rulemaking processes for agencies: informal rulemaking (also known as notice-and-comment rulemaking) and formal rulemaking. Some statutes may require agencies to use a hybrid form of rulemaking that combines elements of the informal and formal processes.
Agency use of formal rulemaking has drastically declined since the U.S. Supreme Court's 1973 decision in United States v. Florida East Coast Railway. The case held that formal rulemaking is only required when a governing statute calls for a hearing, in its words, "on the record." The subsequent decline in the use of formal rulemaking led Justice Clarence Thomas to describe the process as the “Yeti of administrative law” in his 2015 concurrance in Perez vs. Mortgage Bankers Association.
Formal rulemaking
The formal rulemaking process defined by the APA requires an agency to conduct a recorded hearing with procedures similar to those used in a court of law. These proceedings are usually overseen by an administrative law judge. The process is used in cases in which an agency is required by statute to issue rules after a recorded hearing or, according to the Electronic Privacy Information Center, "in rulemakings that involve adjudicative facts, or facts specific to the rights of an individual."
Informal rulemaking
Informal rulemaking, the minimum procedural requirement for most agency rules, requires agencies to publish a notice of proposed rulemaking in the Federal Register (includes the rule's substance, the proposed effective date, and the legal authority under which the agency is proposing the rule), provide a comment period for the public and interested parties to submit comments and recommendations, and publish a revised final rule in the Federal Register, at least 30 days before the rule is scheduled to take effect.
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Adjudication
Adjudication is the process used by an administrative agency to make decisions about how the programs and regulations it oversees apply to specific parties in a specific case. The adjudication process usually involves a written, oral, or in-person administrative hearing, which is similar to a judicial proceeding. These hearings are overseen by an administrative law judge, administrative judge, hearing officer, or board. Although these officials have the word judge in their job title, administrative adjudicators are part of the executive rather than the judicial branch. They are not judges as traditionally described under Article III of the Constitution.
As with rulemaking, there are both formal and informal types of adjudication. The APA only covers formal adjudications, which are expressly required by law to be held "on the record after opportunity for an agency hearing" and presided over by an administrative law judge. The law does not cover informal adjudications, meaning that an agency may adopt its own procedures for such proceedings. Since the Florida East Coast Railway decision, agencies have increased the use of informal adjudication, which now makes up nearly 90 percent of adjudication proceedings.
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Judicial Review
Under the APA, final agency decisions (such as those made during rulemaking or adjudication) are subject to judicial review, usually with a six-year statute of limitations. The APA provides for judicial review for people and parties "adversely affected or aggrieved by agency action within the meaning of a relevant statute" or suffering "legal wrong because of agency action."
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What's Next?
Tomorrow, we will take a look at scholarly arguments about the APA.
Review:
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