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Administrative Procedure Act (APA)
We were on a conference call earlier this month. The call had to do with Regulatory Affairs. The agenda of this meeting was long and the group had little time to cover all of them. Six main topics were on the agenda like Safety, Fraud, Owner Operator regulations and laws affecting them, among others. During the call the Administrative Procedure Act (APA) came up (Long title: “An Act to improve the administration of justice by prescribing fair administrative procedure.”). Even that long title does not give you really any idea what this Act is all about.
First off, we had never heard of this Act and did not know anything about it. So, off we went to learn more than one of the attendees had explained.
One of the main authors of the APA was an individual by the name of Robert H. Jackson. He had been the US Attorney General and an Associate Supreme Court Justice among other positions. While being on the Supreme court he took time off to be the Chief United States Prosecutor at the Nuremberg trials of Nazi war criminals following World War II. From these experiences he became one of the most committed to enforcing due process as protection from overreaching federal agencies.
The APA was enacted on June 11, 1946. Wow the Act has been around for almost 80 years. That was the 79th congress that passed it. Just for context we are now in the 119th congress. It was introduced by Senator Patrick McCarran (D–NV) on October 19, 1945 as Senate bill number 7. It was signed into law by President Harry S. Truman on June 11, 1946.
So, what is the APA you ask? Well, it is the United States federal statute that governs the way in which administrative agencies of the federal government may propose and establish regulations, and it grants U.S. federal courts oversight over all agency actions. It also setup the process how the regulations are drafted, presented to the public, review of public comments.
Here are the main sections of the act just the beginning of each to give you an idea of each:
Section 1: TITLE – “This Act may be cited as the "Administrative Procedure Act".”
Section 2: DEFINITION
Section 3: PUBLIC INFORMATION – “Except to the extent that there is involved (1) any function of the United States requiring secrecy in the public interest or (2) any matter relating solely to the internal management of any agency—”
Section 4: RULE MAKING – “Except to the extent that there is involved (1) any military, naval, or foreign affairs function of the United States or (2) any matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts—”
Section 5: ADJUDICATION – “In every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing, except to the extent that there is involved (1) any matter subject to a subsequent trial of the law and the facts de novo in any court; (2) the selection or tenure of an officer or employee of the United States other than examiners appointed pursuant to section 11; (3) proceedings in which decisions rest solely on inspections, tests, or elections; (4) the conduct of military, naval, or foreign affairs functions; (5) cases in which an agency is acting as an agent for a court; and (6) the certification of employee representatives—"
Section 6: ANCILLARY MATTERS – This section has 4 subsections they are:
(a) Appearance “—Any person compelled to appear in person before any agency or representative thereof shall be accorded the right to be accompanied, represented, and advised by counsel or, if permitted by the agency, by other qualified representative.”
(b) Investigations “—No process, requirement of a report, inspection, or other investigative act or demand shall be issued, made, or enforced in any manner or for any purpose except as authorized by law.”
(c) Subpenas ”—Agency subpenas authorized by law shall be issued to any party upon request and, as may be required by rules of procedure, upon a statement or showing of general relevance and reasonable scope of the evidence, sought.”
(d) Denials “—Prompt notice shall be given of the denial in whole or in part of any written application, petition, or other request of any interested person made in connection with any agency proceeding.”
Section 7: HEARINGS – “In hearings which section 4 or 5 requires to be conducted pursuant to this section—”
Section 8: DECISIONS – “In cases in which a hearing is required to be conducted in Conformity with section 7—”
Section 9: SANCTIONS AND POWERS – “In the exercise of any power or authority—”
Section 10: JUDICIAL REVIEW – “Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion—”
Section 11: EXAMINERS – “Subject to the civil-service and other laws to the extent not inconsistent with this Act, there shall be appointed by and for each agency as many qualified and competent examiners as may be necessary for proceedings pursuant to sections 7 and 8, who shall be assigned to cases in rotation so far as practicable and shall perform no duties inconsistent with their duties and responsibilities as examiners.”
Section 12: CONSTRUCTION AND EFFECT – “Nothing in this Act shall be held to diminish the constitutional rights of any person or to limit or repeal additional requirements imposed by statute or otherwise recognized by law.”
If you want to read the APA here it is: Administrative Procedure Act
It is only nine pages long. So, it is an easy read. You know we write a lot about introduced legislation and this is a short compared to others.
So, now you have learned a little about the APA you know how government agencies are supposed to enact regulations. Keep an eye on them in the future to make sure they are following this law.
Sandy & Stephen
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