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Attorney General's Manual on the Administrative Procedure Act

Prepared by the United States Department of Justice Tom C. Clark, Attorney General, 1947.

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INTRODUCTION

June 11, 1946, the date on which the Administrative Procedure Act was approved by President Truman, is notable in the history of the governmental process. The Act sets a pattern designed to achieve relative uniformity in the administrative machinery of the Federal Government. It effectuates needed reforms in the administrative process and at the same time preserves the effectiveness of the laws which are enforced by the administrative agencies of the Government. The members of the Seventy-Ninth Congress who worked so assiduously on the McCarran-Sumners-Walter bill showed statesmanship and wisdom in dealing with the difficult problems thus presented.

The Department of Justice played an active role in the development of the Administrative Procedure Act. In 1938, at a time when there was criticism of Federal administrative agencies, Homer Cummings, as Attorney General, suggested to the late President Roosevelt that the Department of Justice be authorized to conduct a full inquiry into the administrative process. In response to this suggestion, President Roosevelt requested Attorney General Cummings to appoint a committee to make a thorough study of existing administrative procedures and to submit whatever recommendations were deemed advisable. For this purpose the Attorney General appointed a committee of eminent lawyers, jurists, scholars and administrators.

For a period of two years this committee, known as the Attorney General's Committee on Administrative Procedure, devoted itself to the study of the administrative process. Its work culminated in the issuance of 27 monographs on the operations of the more important Government agencies it had investigated, as well as in a Final Report to the President and to the Congress. This Final Report is a landmark in the field of administrative law. In fact, the main origins of the present Administrative Procedure Act may be found in that Report, and in the so-called majority and minority recommendations submitted by the Committee. These recommendations were the subject of extensive hearings held before a subcommittee of the Senate Committee on the Judiciary in 1941.

[6] There was a lull in legislative activities in the field of administrative law during the next few years by reason of the impact of war. But when Congress in 1945 resumed consideration of legislation in this field, the Chairmen of both the Senate and House Committees on the Judiciary called upon this Department for its assistance. The invitation was accepted, and the task was assigned to the Office of the Assistant Solicitor General. For many months the members of that Office assisted in the drafting and revision of the bill (S. 7) which developed into the Administrative Procedure Act.

Finally, in a letter dated October 19, 1945, to the Chairmen of both Committees on the Judiciary, I endorsed S. 7 as revised. I concluded that "The bill appears to offer a hopeful prospect of achieving reasonable uniformity and fairness in administrative procedures without at the same time interfering unduly with the efficient and economical operation of the Government." Sen. Rep. 752, 79th Cong., 1st sess., pp. 37-38. The bill then moved in regular course through both Committees with a few minor modifications (H.R. Rep. 1980, 79th Cong., 2nd sess., p. 57). It was subsequently adopted by both Houses of Congress without a dissenting vote.

After the Administrative Procedure Act was signed by President Truman on June 11, 1946, it became evident that a major phase of our work had just begun. Government agencies were calling upon us for advice on the meaning of various provisions of the Act. We endeavored to furnish that advice promptly and in detail to every agency which consulted us. At length I decided that we could offer a definite service by preparing a general analysis of the provisions of the Act in the light of our experience. This manual is the result of that effort. It does not purport to be exhaustive. It was intended primarily as a guide to the agencies in adjusting their procedures to the requirements of the Act.

George T. Washington, the Assistant Solicitor General, was assigned the tasks I have just described--both the rendition of advice to the agencies and the preparation of the manual. He had assisted in drafting the Act and was familiar with the administrative problems of the agencies. Two members of his staff, Robert Ginnane and David Reich, took the major burden of the work, under the supervision and direction of Mr. Washington and myself. The manner in which the task has been carried out has my full approval.

[7] While the manual was intended originally for distribution only to Government agencies, public demand for it has been so great that I have decided to make it generally available. I trust that it will prove helpful to those who find a need for it.

A word of explanation as to the manner in which the manual is arranged should be helpful. It has been prepared mainly on a section by section analysis of the Act. Each of the major sections is treated in a separate chapter. There has been no separate treatment of section 11, covering the appointment of examiners, since the Civil Service Commission is entrusted with the responsibilities under that section and is presently engaged in working out the necessary requirements, assisted by an Advisory Committee of experts designated by the Commission. No chapter as such is being devoted to either section 2 (definitions) or to section 12 (construction and effect) for the reason that by themselves they have little meaning except in connection with the functional aspects of the Act. However, there is a separate chapter on two important phases of section 2, namely, the coverage of the Act and the fundamental distinction between rule making and adjudication.

Tom C. Clark

Attorney General

August 27, 1947

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NOTE CONCERNING MANNER OF CITATION OF LEGISLATIVE MATERIAL

The legislative history of the Administrative Procedure Act really begins with the Final Report of the Attorney General's Committee on Administrative Procedure (cited hereinafter as Final Report). This Report led to the introduction in Congress of the so-called majority and minority bills, respectively designated as S. 675 and S. 674, 77th Cong., 1st sess. These bills, together with S. 918, formed the basis for the extensive and valuable hearings held in 1941 before a subcommittee of the Senate Committee on the Judiciary (cited hereinafter as Senate Hearings (1941)). In 1945, the House Committee on the Judiciary held brief hearings (cited hereinafter as House Hearings (1945)) on various administrative procedure bills, of which H.R. 1203, 79th Cong., lst sess., was the precursor of the present Act. Also in June 1945, the Senate Committee on the Judiciary issued a comparative print, with comments,, which is an essential part of the legislative history. The Committee reports on the Act are Sen. Rep. 752, 79th Cong., 1st sess. (cited hereinafter as Sen. Rep.). and H.R. Rep. 1980, 79th Cong., 2nd sess. (cited hereinafter as H.R. Rep.). In October 1945, the Attorney General, at the request of the Senate Committee on the Judiciary, submitted a letter, with memorandum attached, setting forth the understanding of the Department of Justice as to the purpose and meaning of the various provisions of the bill (S. 7). This letter and memorandum constitute Appendix B of the Senate Committee Report and have been printed as Appendix B to this manual.

There may be obtained from the Government Printing Office Sen. Doc. No. 248, 79th Cong., 2nd sess., entitled "Administrative Procedure Act--Legislative History" (cited hereinafter as Sen. Doc.), which contains the Senate and House debates on the Administrative Procedure Act, together with all the documents mentioned above, except the Final Report of the Attorney General's Committee on Administrative Procedure and the Senate Hearings (1941). Wherever appropriate, there will be two citations, one to the particular report or hearing in which the legislative material appears, the other a parenthetical reference to the corresponding page in the Senate Document.

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