Administrative Procedure Act Procedures

1
Administrative Procedure Act Procedures

• Rulemaking and adjudication

2
Three types of proceedings

• Notice-and-comment rulemaking (informal
  rulemaking) 553
• Formal rulemaking 556, 557
• (Formal) Adjudication 554, 556, 557

3
Terminology

• Rulemaking
• Notice-and-comment rulemaking 553
• Formal rulemaking 556, 557
• Trial-type proceedings
• Formal rulemaking 556, 557
• (Formal) Adjudication 554, 556, 557

4
It works through the definitions!

• 551
• Clause (4) defines rule
• Clause (5) defines rule making
• Clause (6) defines order
• Clause (7) defines adjudication
• N.b. order is defined to include licensing
  and clauses (8) and (9) define license and
  licensing

5
definitions

• The definition of rule in 551(4) is a
  critical one.
• Most other definitions are derived from the
  definition of rule.
• Thus adjudication is defined as the process for
  the formulation of an order and order is
  defined largely in terms of what is not rule
  making

6
Definitions and how it works, continued

• The definitions tell us what the proceeding is.
• If it is rulemaking, then 553 governs (at least
  initially)
• See last sentence of 553(c) (routing the
  proceeding to 556, 557)

7
Definitions and how it works, continued

• If the definitions tell us that the matter is
  adjudication, then we go to 554.
• Formal adjudication ( 554, 556, 557)
  incorporates procedural restrictions (mostly in
  554(d)) that are absent in formal rulemaking (
  556, 557)

8
Other interesting stuff

• Although 553 applies across-the board to all
  rulemaking, it exempts from its
  notice-and-comment requirements
• Interpretative rules
• General statements of policy
• Rules of agency organization, procedure or
  practice.
• There is also a good cause exception.