Question

explain how would you apply the administrative procedure act to your agency?

Answer 1

The Administrative Procedure Act (APA) governs the process through which federal agencies develop and issue regulations. It includes the requirements for publishing notices of proposed and final rulemaking in the Federal Register and provides opportunities for the public to comment on the notices of proposed rulemaking. The APA requires most rules to have an upto 30-day delayed effective date.

Apart from setting forth rulemaking procedures, the APA also addresses other agency actions such as issuance of policy statements, licenses, and permits. It also provides standards for judicial review if a person has been adversely affected by an agency action.

The APA mentions two kinds of rulemaking, i.e. formal and informal. "Formal rulemaking" calls for a trial like, on record proceeding. However, most federal agencies, develop rules through "informal rulemaking." The main requirements for that are:

• Publication of "Notice of Proposed Rulemaking" (know as NPRM) in the Federal Register
• Opportunity for participation of the public by submission of written comments
• Consideration by the agency of the various public comments and other relevant material
• Publication of a final rule not less than 30 days before its effective date, alongwith a statement explaining the purpose of the rule.

While the APA doesn't require all agencies to follow a single model for rulemaking, it however does impose minimum procedural conditions that all agencies are expected to follow. This ensure that the public has the opportunity to participate in the formulation and revision of government regulations, and that there be minimum standards for judicial review.

The requirements are very minimal, yet as basic rules they provide the foundation for development of further procedures. E.g., although the APA does not require a public file or record of the rulemaking process, agencies usually go ahead and compile one to prove their process is fair and reasonable.

Also, the agency is free to publish an Advance Notice of Proposed Rulemaking (ANPRM) when the agency wants to particularly test out a proposal or solicit ideas before it drafts its Notice of Proposed Rulemaking. On the other hand, if an agency needs to respond quickly to an emergency it can implement a final regulation while still accepting and considering public comments.

Rules that are exempt from the notice-and-comment requirements of the APA are those dealing with military or foreign affairs functions as well as those relating to agency management or personnel also to public property, loans, grants, benefits or contracts."

Agencies often voluntarily waive an exemption, although while they do so, they still have the power to omit notice-and-comment when for "good cause" the procedures would be impracticable, unnecessary or contrary to the interest of public interest. Congress may require an agency to follow a specific public participation procedure.

The other exemptions from notice-and-comment procedures are:

• Rule of agency organization, procedure or practice
• Interpretative rules that add very little substantive interpretation of the law
• General statements of policy.
• Agencies may run into some difficulties in the courts trying to invoke these exemptions, however, if the proposed action has a major impact on the general public.

While the APA governs the rulemaking process, as a practical matter its influence on rulemaking has been diminished greatly by the Reagan executive orders, and Clinton's subsequent E.O. 12866, that has placed OMB in a position to shape agency decision-making at its earliest stages.