Over ten years in the making, the Administrative Procedure Act reflected increasing concern that the proliferating New Deal agencies were exercising unprecedented power, almost wholly unregulated. This legislation was part of a reform effort which had earlier brought about the Hatch Acts of 1939 and 1940, forbidding campaigning and political activities by executive branch federal employees (1939) and state and local employees paid wholly or partly from federal funds (1940). The Administrative Procedure Act standardized bureaucratic procedures. It established certain basic citizen rights vis-a-vis government agencies: the right to notice, the right to a hearing, the right to due process in decision making, and the right to independent review.
These requirements can be waived, however, in matters involving secrecy in the public interest or matters solely pertaining to the internal management of the agency.
Right to notice (Section 4): When an agency proposes to issue a rule, all parties subject to it must be notified or notice must be published in the Federal Register. Notice must include the time, place, and nature of rule-making proceedings, a citation of the law authorizing the proposed rule, and a description of the nature of the proposed rule. Notice must be published at least thirty days prior to the proceedings unless a good cause is published along with the notice.
Notice, however, can be waived whenever the agency finds it to be impracticable, unnecessary, or contrary to the public interest. Notice is also not required in the case of general statements of policy, rules of agency organization, and interpretative rules.
Right to a hearing (Sections 4-7): Agencies must provide interested persons the right to participate in rule-making through submission of written and/or oral arguments. When hearings are required by law, due notice must be given regarding the time, place, and nature of the hearing. Persons compelled to appear at hearings have the right to legal counsel. Presiding officers at a hearing must be representatives of the agency and must be the ones who make the initial decision in the case--or the entire hearing record must be certified for initial decision to the agency. All interested parties must have the right to a copy of the hearing transcript upon payment of reasonable fees.
Right to decision on submittals (Section 8): Prior to each initial decision, interested parties must have the opportunity to submit proposed findings, proposed exceptions to findings, along with supporting reasons. The official record must show the agency ruling on each proposed finding or exception and the basis for each ruling.
Right to independent review (Section 10): Except then legislation precludes judicial review or commits agency action to agency discretion, any person suffering a legal wrong due to agency action is entitled to judicial review. Agencies are authorized to delay action pending judicial review, or the reviewing court may order such delay. Judicial review does not consider the substantive merits of the agency decision per se, but the courts may compel agency action illegally withheld. The courts may also set aside agency actions and findings that are (1) arbitrary and capricious, (2) unconstitutional, (3) in excess of legislative mandate, (4) made without observing procedures required by law, (5) unsupported by substantial evidence gathered in hearings or other agency review of the record, or (6) unwarranted by the facts in cases subject to trial by a reviewing court which hears the evidence de novo (i.e., directly and all over again).
When the reviewing court finds that an official has failed to carry out legally required activities, a writ of mandamus is issued requiring such activity to be undertaken. Writs of prohibition are used to halt agency actions deemed beyond the official's legal authority. These include the writ of injunction, which may be used to halt an agency action adversely affecting the public interest. Another is the writ of quo warranto, used to force officials to specify which legislation is claimed for authorization of agency actions.
The Administrative Procedures Act (APA) contains numerous loopholes and few penalties for agencies that ignore its provisions. Nonetheless, the APA symbolizes the theme of the administrative state: the formal institutionalization of interest access to the new centers of decision making power in bureaucracy. The Freedom of Information Act, discussed below, is of the same nature and has been used with great effect by environmental and other interest groups.
Source: http://www.usbr.gov/laws/apa.html, 1998; D. Garson, with permission.