Committee examines exemptions in APA after agency asserted program-level exemption

The committee discussed statutory exemptions that remove specified topics from the Administrative Process Act and considered a recent example in which an agency (the Department of Education) initially argued that an exemption for grants meant its programmatic activities were exempt from the APA. DPB staff said that reading would allow agencies to bypass rulemaking entirely for activities that previously had binding regulations and would substantially broaden the scope of exemptions.

"Our reading of it was that agency action, as enumerated as hereafter, is exempt," DPB staff said, urging that exemptions be read to apply to regulations and case decisions rather than to the underlying program activities themselves. Members and staff observed that agencies frequently use exemptions (for example, the Virginia State Police's use of certain exemptions) and that the statute's prefatory language — "agency action in the following areas shall be exempt" — should be clarified so the provision cannot be read to exempt program operations.

DPB suggested JLARC or JCAR might be appropriate bodies to conduct a broader exemption-by-exemption review, but the committee agreed the group's immediate role is to examine the APA exemptions and provide a menu of recommendations to the Code Commission. The meeting closed after a public comment period produced no speakers and the chair called a voice vote to adjourn.