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1 Designing Federal Permitting Programs 1 (2015)

handle is hein.usfed/dsgnfdp0001 and id is 1 raw text is: _ ADMINISTRATVE CONFIERENCE OF THE UNITED STATES Administrative Conference Recommendation 2015-4 Designing Federal Permitting Programs Adopted December 4, 2015 Regulatory permits are ubiquitous in modern society, and each year dozens of federal agencies administering their regulatory permit authority issue tens of thousands of permits covering a broad and diverse range of actions.1 The APA includes the term permit in its definition of license. In addition to agency permits, the APA defines licenses to include the whole or part of an agency...certificate, approval, registration, charter, membership, statutory exemption or other form of permission.2 Otherwise, the APA provides little elaboration on the definition of a permit.3 For purposes of this recommendation, a regulatory permit is defined as any administrative agency's statutorily authorized, discretionary, judicially reviewable granting of permission to do something that would otherwise be statutorily prohibited. This recommendation treats any agency action that meets this definition as a permit, regardless of how it is styled by the agency (e.g., license, conditional exemption). Permits exist on a continuum of agency regulation, falling between exemptions (in which an activity is not regulated at all) and prohibitions. Broadly speaking, there are two contrasting approaches to permitting. 4 In specific permitting, upon receiving an application, an agency engages in extensive fact gathering and deliberation particular to the individual circumstances of 1 Eric Biber & J.B. Ruhl, Designing Regulatory Permits 2 (2015), https://www.acus.gov/report/licensing-and- permitting-final-report. For a more complete discussion of different types of permits and permitting systems, see Eric Biber & J.B. Ruhl, The Permit Power Revisited: The Theory and Practice of Regulatory Permits in the Administrative State, 64 DUKE L.J. 133 (2014). 2 5 U.S.C. § 551(8). 3 See Biber & Ruhl, supra note 1, at 3-4 (discussing lack of APA definition). 4 Id. at 2-6.

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