The Administrative Procedures Act (APA) was initially conceptualized as an oversight tool designed to help increase accountability and to bring order to a rapidly expanding government in the period after the Great Depression. (Nylander, 2006) To address the issues, which developed during the Great Depression, President Roosevelt expanded the federal government regulatory with his creation of the New Deal. This wave of expansion, in the federal government, pitted proponents of government expansion against those who feared that vesting administrative agencies with regulatory and adjudicatory functions amounted to the establishment of a fourth branch of government without formal accountability to the public.
On June 11, 1946, the APA was approved to ensure the administrative agency’s rule making process was standardized across all administrative agencies. Then, on June 4, 1966, President Lyndon Johnson amended the APA by signing into law the Freedom of Information Act (FOIA). The FOIA helped to expand public access by allowing citizens access to government records; it also places the burden on the government to document why information may not be released. (Nylander, 2006) The Federal Privacy Act of 1974 limits release of certain information about individuals. The Government in the Sunshine Act, passed in 1976, is based on the policy that “the public is entitled to the fullest practicable information regarding the decision making processes of the Federal Government.” (Berg, Klitzman, & Edles, 2005) The Government in the Sunshine Act amended the APA by creating section 552(b) titled “Open Meetings.” Today, administrative agencies actually create more rules than Congress and the courts combines. (Kubasek & Silverman, 2000)
Steps in Formal Rulemaking
Administrative agencies develop rules, which specific industries, must comply with. Part of the APA was created to ensure consistency across all agencies during the rulemaking process. The Administrative Procedures Act’s section 553 sets out the informal rulemaking for administrative agencies. Within section 553, subsection 553(c) states:
When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection.
That sentence establishes the distinction between informal, notice-and-comment rulemaking under section 553 and formal, “on-the-record” rulemaking under sections 556 and 557. (Lubbers, 2006) Of the two types of rulemaking, informal rule making is most often used and formal rulemaking has always been the exception rather than the norm. Formal rulemaking is used for ratemaking, food additives, and other limited categories. (Eisner, 2003) Jeffrey S. Libbers states, in his book Federal Agency Rulemaking, which “some people believe that informal rule making is unfair because parties who are interested in the proposed rule have no idea what types of evidence the agency has received from other sources with respect to that rule. Thus, if the agency is relying on what one party might perceive as flawed or biased data, that party has no way to challenge those data. A second type of rule making, formal rule making, avoids that problem.” (Lubbers, 2006)
The first step in formal rulemaking is publication of a notice of a proposed rule making by the agency in the Federal Register. Once the rule has been published a date will be given as to when the hearing will take place. The public hearing will grant witnesses the ability to give their testimony on the pros and cons of the proposed rules and are subjective to cross examination. Next, an office transcript of the hearing is kept and the agency must make and publish all formal findings; if regulation is adopted, the final rule is published in the Federal Register. (Kubasek & Silverman, 2000)
Summary
Administration agencies have their place in our society today. Congress is not prepared to make an in-depth analysis that is required to create some of the highly sophisticated issues arising within many industries. Administration agencies are not elected officials like members of congress, thus in theory, the agencies would have more education in the area of which they serve. I believe that the Administration agencies play a vital role in lawmaking and should continue to operate to better serve our government as a whole. I believe that the Administration agencies are not perfect and could use a little reform. Informal rulemaking has taken over, as the norm; I believe this is not just a way for the agency to save time and money as it is a way for the agencies to be less transparent. I see Informal rulemaking as being a more secretive method as it does not allow for other to cross-examine what is being considered by each agency as it would be in formal rulemaking. However, with that said, I believe the APA and the Administrative agencies still have a place in government today.
On June 11, 1946, the APA was approved to ensure the administrative agency’s rule making process was standardized across all administrative agencies. Then, on June 4, 1966, President Lyndon Johnson amended the APA by signing into law the Freedom of Information Act (FOIA). The FOIA helped to expand public access by allowing citizens access to government records; it also places the burden on the government to document why information may not be released. (Nylander, 2006) The Federal Privacy Act of 1974 limits release of certain information about individuals. The Government in the Sunshine Act, passed in 1976, is based on the policy that “the public is entitled to the fullest practicable information regarding the decision making processes of the Federal Government.” (Berg, Klitzman, & Edles, 2005) The Government in the Sunshine Act amended the APA by creating section 552(b) titled “Open Meetings.” Today, administrative agencies actually create more rules than Congress and the courts combines. (Kubasek & Silverman, 2000)
Steps in Formal Rulemaking
Administrative agencies develop rules, which specific industries, must comply with. Part of the APA was created to ensure consistency across all agencies during the rulemaking process. The Administrative Procedures Act’s section 553 sets out the informal rulemaking for administrative agencies. Within section 553, subsection 553(c) states:
When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection.
That sentence establishes the distinction between informal, notice-and-comment rulemaking under section 553 and formal, “on-the-record” rulemaking under sections 556 and 557. (Lubbers, 2006) Of the two types of rulemaking, informal rule making is most often used and formal rulemaking has always been the exception rather than the norm. Formal rulemaking is used for ratemaking, food additives, and other limited categories. (Eisner, 2003) Jeffrey S. Libbers states, in his book Federal Agency Rulemaking, which “some people believe that informal rule making is unfair because parties who are interested in the proposed rule have no idea what types of evidence the agency has received from other sources with respect to that rule. Thus, if the agency is relying on what one party might perceive as flawed or biased data, that party has no way to challenge those data. A second type of rule making, formal rule making, avoids that problem.” (Lubbers, 2006)
The first step in formal rulemaking is publication of a notice of a proposed rule making by the agency in the Federal Register. Once the rule has been published a date will be given as to when the hearing will take place. The public hearing will grant witnesses the ability to give their testimony on the pros and cons of the proposed rules and are subjective to cross examination. Next, an office transcript of the hearing is kept and the agency must make and publish all formal findings; if regulation is adopted, the final rule is published in the Federal Register. (Kubasek & Silverman, 2000)
Summary
Administration agencies have their place in our society today. Congress is not prepared to make an in-depth analysis that is required to create some of the highly sophisticated issues arising within many industries. Administration agencies are not elected officials like members of congress, thus in theory, the agencies would have more education in the area of which they serve. I believe that the Administration agencies play a vital role in lawmaking and should continue to operate to better serve our government as a whole. I believe that the Administration agencies are not perfect and could use a little reform. Informal rulemaking has taken over, as the norm; I believe this is not just a way for the agency to save time and money as it is a way for the agencies to be less transparent. I see Informal rulemaking as being a more secretive method as it does not allow for other to cross-examine what is being considered by each agency as it would be in formal rulemaking. However, with that said, I believe the APA and the Administrative agencies still have a place in government today.
References
Berg, R. K., Klitzman, S. H., & Edles, G. J. (2005). An Interpretive Guide to the Government in the Sunshine Act second edition. Chicago: ABA Publishing.
Eisner. (2003, January). E-Rulemaking. Retrieved April 14, 2010, from Harvard.edu: http://www.hks.harvard.edu/m-rcbg/Conferences/rpp_rulemaking/Eisner_Presentation.pdf
Kubasek, N. K., & Silverman, G. S. (2000). Environmental Law. Prentice Hall.
Lubbers, J. S. (2006). A Guide to Federal Agency Rulemaking. Chicago: ABA Publishing.
Nylander, J. (2006). The Administrative Procedure Act. Michigan Bar Journal , 38-41.
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