Updating the Federal Administrative Procedure Sourcebook

This article was authored by Victoria Barnard, a 2L at the George Washington University Law School. The views expressed below are those of the author and do not represent the views of ACUS or the Federal Government.

The first edition of ACUS’s Federal Administrative Procedure Sourcebook, published in 1985, filled gaps in the public’s understanding of the regulatory processes by which federal government agencies operate. It also served as an invaluable resource for agency officials, by centralizing publication of analysis, legislative history, related regulations, and other references for 18 procedural statutes, including the Administrative Procedure Act, the Freedom of Information Act, and the Paperwork Reduction Act.

This and subsequent editions in 1992, 2000, 2008, and 2016 have provided both access to and explanations of key legal sources, including statutes, guidance, and executive orders, that broadly apply to federal agency officials governing administrative procedure. In addition to serving as an invaluable resource to administration and agency officials, the Sourcebook has also aided federal courts in their analysis of major administrative statutes. See, e.g., Harkonen v. U.S. Dep’t of Justice, 800 F.3d 1143, 1149 (9th Cir. 2015).

In tandem with the Section of Administrative Law and Regulatory Practice of the American Bar Association, ACUS will publish a continuously updated electronic edition of the Sourcebook on its website. The electronic edition will have pages dedicated to each major administrative statute and a user-friendly layout that will make the Sourcebook more accessible to the broader public.

Much has changed since the last print edition was published in 2016. Significant developments have included major changes in executive oversight of agencies. For example, the administration issued Exec. Order 13,771, known as the “2 for 1” order, which requires agencies to identify two regulations to be repealed for every proposed or promulgated regulation and to keep the total incremental cost of all proposed and repealed regulations at zero or less. This Order significantly altered the process for agency officials in regulatory review.

Another major development is Congress’s recent invocations of the Congressional Review Act (CRA). While the CRA was signed into law in 1996 to empower Congress to have greater oversight over agency rulemaking by setting aside certain rules before they go into effect, Congress only enacted one disapproval resolution of an agency rule over two decades. However, between February and November 2017, Congress enacted 15 disapproval resolutions of agency rules. Despite a 60-day limit on introducing such joint resolutions, some have argued that even more rules from prior administrations may be subject to the CRA because of agency failures to report final rules to Congress.

These major developments highlight the importance of continuously updating the Sourcebook to remain a useful resource for understanding administrative procedure.

This post is part of the ACUS Intern Blog Series.