Administrative Procedure Act

Administrative Procedures Act, codifying Public Health Laws included provision... 

The court subsequently overturned the criminal indictment, ruling that the OSHA PSM regulation was so ambiguous a reasonable person could not have determined whether it applied to the defendant s activities and that the Administrative Procedures Act prohibits application of OSHA s informal interpretations in a criminal case (Surrick, Judge R. Barclay, United States of America v. Irl "Chip" Ward, U.S. District Court for the Eastern District of Pennsylvania, Sept. 5, 2001). 

As they apply to the promulgation of safety standards and bems, the rulemaking procedures authorized by Section 9(d)(2) incorporate and slightly enlarge upon the Administrative Procedure Act s provisions for informal rulemaking rules must be published in the form of a proposal, comments (both oral and written) must be permitted and, after the comment period, final rules must be adopted or the proposal withdrawn. 

Procedures Act of 1946, which laid out meticulous procedures to be followed by all regulatory commissions that would assure Constitutional due process (Moynihan, 1998). It also specified timing limits, the need to act upon evidence, the ability of witnesses presenting that evidence to be cross-examined, and many other aspects of the work of regulators. The Administrative Procedures Act imparted much greater fairness, predictability, and transparency than had theretofore been the case in American regulation. 

The Administrative Procedure Act, 5 U.S.C. i 500, requires notice to the affected public and an opportunity for the public to comment before regulations are promulgated. 

The statute requires a hearing under the Administrative Procedure Act if the company or person that the EPA proposes to penalize asks for one. The EPA must give fifteen days notice of the right to request a hearing before it issues a final order. The EPA has promulgated Consolidated Rules of Practice for civil penalty assessments that is a procedure manual for all civil TSCA penalty assessments. The Consolidated Rules of Practice governs hearings and appeals to the EPA s Environmental Appeals Board. 

The Consolidated Rules of Practice recites the elements that must be in a TSCA complaint. These include a reference to 16 s civil penalty authority, a reference to the statutory and regulatory provisions that were allegedly violated, the factual basis for the allegations, and the relief and monetary penalty sought. The complaint must provide notice of the respondent s right to a hearing, specify if the Administrative Procedure Act applies (which it does), and be accompanied by a copy of the Consolidated Rules of Practice. 

In contrast to the detailed description of the de novo review set forth above for denials of petitions to issue new rules, TSCA provides no description of the type of review available for denials of petitions to amend or repeal existing rules. Absent a statutory command to use a particular standard of review, the review available to an aggrieved petitioner is the arbitrary and capricious standard of review prescribed by the Administrative Procedure Act. The legislative history suggests that appeals by petitioners from the denial of... 

Sec. 6. [ 156. Rules and regulations] The Board shall have authority from time to time to make, amend, and rescind, in the manner presaibed by the Administrative Procedure Act [by subchapter II of chapter 5 of title 5], such rules and regulations as may be necessary to carry out the provisions of this Act [subchiQ)ter]. 

The Board, in its discretion, may, by rule of decision or by published rules adopted pursuant to the Administrative Procedure Act [to subchapter II of chapter 5 of title 5], decline to assert jurisdiction over any labor dispute involving any class or category of employers, where, in the opinion of the Board, the effect of such labor dispute on commerce is not sufficiently substantial to warrant the exercise of its jurisdiction Provided, That the Board shall not decline to assert jurisdiction over any labor dispute over which it would assert jurisdiction under the standards prevailing upon August 1, 1959. 

Any administrative determination by the Secretary of the amount of any penalty under this subsection shall be final, unless within 15 days after receipt of notice thereof by certified mail the person charged with the violation takes exception to the determination that the violations for which the penalty is imposed occurred, in which event final determination of the penalty shall be made in an administrative proceeding after opportunity for hearing in accordance with section 554 of Title 5 [Administrative Procedure Act], and regulations to be promulgated by the Seaetary. 

In accordance with the provisions of subchapter 11 of chapter 5 of title 5 [Administrative Procedures Act, 5 U.S.C. 551 et seq.], the Equal Employment Opportunity Commission may issue such rules and regulations as it may consider necessary or appropriate for carrying out this chapter, and may establish such reasonable exemptions to and from any or all provisions of this chapter as it may find necessary and proper in the public interest. 

On April 8, 1996, the New Mexico Attorney General filed a petition for the review of 40 CPR 194 (Civil Action No. 96-1107 filed in the U.S. Court of Appeals for the District of Columbia Circuit). This petition was ultimately consolidated with two other similar petitions filed by two environmental groups and two individuals (Civil Action No. 96-1108) and the Texas Attorney General (Civil Action No. 96-1109). The petitions alleged violations by EPA of the WIPP Land Withdrawal Act and the Administrative Procedure Act in promulgating the WIPP compliance criteria. The U.S. Court of Appeals for the DC Circuit denied the petitions and the final criteria remained as promulgated. 

In summary, national consensus standards lack the force and effect of codified rules, which can only be promulgated after notice-and-comment rulemaking under the Administrative Procedures Act., 5 V.S.C. 551 et seq. And, as noted by the U.S. Court of Appeals mB B Insulation, Inc. v. OSHRC, et al., 583 F.2d 1364, 1367-1368 (5th Cir. 1978), the law requires only those protective measures which the knowledge and experience of the employer s industry would clearly deem appropriate under the circumstances. 

---