Final Report to the Administrative Conference of the United States, October 2015
47 Pages Posted: 25 May 2016
Date Written: October 30, 2015
Federal agencies may issue declaratory orders to provide regulated parties with targeted guidance that has some legal effect and precedential value without imposing any sanction or other coercive measure. The authority to issue such orders is grounded in a little-known provision of the Administrative Procedure Act (APA), 5 U.S.C. § 554(e). Over the decades since the APA’s enactment, government officials and scholars have consistently expressed enthusiasm for administrative declaratory orders, and yet relatively few agencies have issued them with any regularity. This Report, which was commissioned by the Administrative Conference of the United States (ACUS), provides an in-depth exploration of administrative declaratory orders. The analysis is enriched by interviews the author conducted with personnel at the handful of agencies that have robust declaratory practices. The Report encourages federal administrative agencies to use declaratory orders more frequently and creatively and suggests best practices and procedures for issuing declaratory orders.
Keywords: administrative law, adjudication, Administrative Procedure Act, declaratory orders
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