Saturday, August 4, 2007

"Rule-making" under the Administrative Procedure Act

[Source: Warren, Kenneth E., Administrative Law in the Political System, 3rd ed., 1997]

According to the Administrative Procedure Act, "rule-making" means an "agency process for formulating, amending, or repealing a rule," and the act defines a "rule" to mean "the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency" (Sec. 551). When an administrative agency engages in rule-making, it is legislating policy.

Section 553 of the APA in essence requires administrative agencies to follow fair and reasonable procedures when they make rules. Although liberal exceptions exist for particular agencies and under certain conditions, the APA requires administrators to follow several important procedural steps when making rules.

  1. Administrators are required to give public notice of proposed rule-making by publishing the proposal in the Federal Register (an official daily government publication). To be proper, the notice should include: (1) the "time, place, and nature" of the proposed rule-making proceedings; (2) the legal basis on which the rules are proposed; and (3) a general description of the proposed rule along with an explanation of the issues involved.
  2. Agencies are compelled to provide opportunities for "interested persons" to take an active part in the rulemaking process by allowing them to submit "written data, views, or arguments with or without opportunity for oral presentation."
  3. The act specifies that a "substantive rule" should not be allowed to take effect until at least thirty days after its public notice.
  4. Administrators are legally obligated to grant concerned parties "the right to petition for the issuance, amendment, or repeal of a rule."

Only three kinds of rule-making are acknowledged by the Administrative Procedure Act: informal (notice and comment rule-making), formal (trial-like hearing rule-making) and Negotiated Rule-Making, codified into sections 561-583 of the APA in 1990 (Negotiated Rule-Making is an experimental approach with limited application). Informal notice and comment rule-making, which simply provides notice and an opportunity for interested parties to make comments on the proposed rule, is by far the more common procedure. However, the APA provides for formal rule-making to be employed "when rules are required by statute to be made on the record after opportunity for an agency hearing" (Sec. 554). The most-known statute requiring formal rule-making procedures is the Food, Drug, and Cosmetic Act of 1938, 21 U.S.C. Section 371(e)(3).