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Administrative Procedure Act (5 U.S.C. Subchapter II)

The Administrative Procedures Act (APA) ( 5 U.S.C. §§ 551-59, 701-06, 1305, 3105, 3344, 5372, 7521) was passed in 1946 to clarify the process of making regulations, and to allow greater accessibility and participation by the public in the rulemaking process. In general, the APA requires the publication in the Federal Register of most rules, and a period for public comment. Rulemaking is defined in the APA as the "agency process for formulating, amending, or repealing a rule." Both formal (involving an agency hearing process) and informal (involving public notice and comment) rulemaking are addressed in the act. Most agency rulemaking is governed by section 553 of the APA. Unless the rule falls within one of the exceptions in section 553, rulemaking under that section must comply with the following minimum procedural requirements:

  1. a notice of proposed rulemaking must be published in the Federal Register that includes a statement of the time, place, and nature of the public rulemaking proceedings; a reference to the legal authority under which the rule is proposed; and either the terms or a description of the subjects and issues to be addressed by the proposed rule;

  2. interested persons must be given an opportunity to submit written data, views, or arguments on the proposal, with or without opportunity for oral presentation;

  3. a concise general statement of the basis and purpose must accompany the final rule;

  4. and subject to certain exceptions, publication of the final rule must take place not less than 30 days before its effective date.

The rules which are exempt from section 553’s requirements fall under two broad categories—those dealing with military or foreign affairs functions and those relating to agency management or personnel or to public property, loans, grants, benefits, or contracts. Broad exemptions for the notice and comment process also exist for other types of rules, such as interpretive and procedural rules, and more limited exemptions apply to rules that relieve restrictions.

To increase public awareness of the manner in which regulations were proposed and adopted, Congress passed additional acts (like the Regulatory Flexibility Act) requiring publication of more detailed information in the Federal Register.