The Case for (Finally) Fixing the APA's Definition of 'Rule'
21 Pages Posted: 15 Jul 2004 Last revised: 22 Dec 2016
Since its enactment in 1946, the Administrative Procedure Act (APA) has been plagued by a drafting error in the clause that defines one of its core terms. A rule is ordinarily understood to be an official pronouncement that speaks in general terms, addressing a class of situations. The Act, however, provides in relevant part that the word rule means an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy. Thus, under a literal reading of the definition, the status of a pronouncement as a rule turns on whether it is prospective, not on whether it is framed in general terms. In light of the discrepancy between the Act's wording and ordinary usage, most administrative lawyers simply ignore the definition. From time to time, however, the APA definition is taken at face value, and the result is confusion and misdirected analysis. Although a statutory fix is by no means a matter of urgent social concern, Congress does periodically consider adopting amendments to the APA, and a technical amendment to strike the words or particular and and future effect from the definition of rule would be a worthwhile endeavor at such a time.
Keywords: administrative law, Administrative Procedure Act, rulemaking, adjudication
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