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Administrative Procedures Act 1946

Administrative Procedures Act 1946. APA, 5 U.S.C. §§ 551-59, 701-06, 1305, 3105, 3344, 5372, 7521 The Administrative Procedure Act establishes certain administrative procedures that federal administrative agencies must follow in conducting their affairs.

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Administrative Procedures Act 1946

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  1. Administrative Procedures Act 1946 • APA, 5 U.S.C. §§ 551-59, 701-06, 1305, 3105, 3344, 5372, 7521 • The Administrative Procedure Act establishes certain administrative procedures that federal administrative agencies must follow in conducting their affairs. • To clarify the process of making regulations • To allow greater accessibility and participation by the public in the rulemaking process

  2. Requirements of the APA • APA requires the publication in the Federal Register of most rules • Meant to provide more information on new regulations and their impacts • New rules require a period for public comment • APA defines rulemaking as "agency process for formulating, amending, or repealing a rule." • Involves both formal and informal rulemaking

  3. APA meant to make the process fairer • Most agency rulemaking is governed by section 553 of the APA. • Certain exemptions may be allowed, but otherwise all minimum standards must be observed: • A notice of proposed rulemaking must be published in the Federal Register that includes a statement of the time, place, and nature of the public rulemaking proceedings; a reference to the legal authority under which the rule is proposed; and either the terms or a description of the subjects and issues to be addressed by the proposed rule

  4. Other requirements under APA • Interested persons must be given an opportunity to submit written data, views, or arguments on the proposal, with or without opportunity for oral presentation. • A concise general statement of the basis and purpose must accompany the final rule. • Subject to certain exceptions, publication of the final rule must take place not less than 30 days before its effective date.

  5. Exemptions under section 553 • Either: military or foreign affairs functions • Or: relating to agency management or personnel or to public property, loans, grants, benefits, or contracts. • To increase public awareness of the manner in which regulations were proposed and adopted, Congress passed additional acts (like the Regulatory Flexibility Act) requiring publication of more detailed information in the Federal Register.

  6. Regulatory Flexibility Act (1980) • The Regulatory Flexibility Act (RFA) of 1980, as amended (5 U.S.C. 601 et seq.), requires Federal agencies to review their regulations to ensure that they do not unduly inhibit the ability of small entities (business) to compete. • Greater analysis of impact • Periodic review of regulations having significant impacts on small entities • Semiannual publication of rules under consideration

  7. Freedom of Information Act • The Freedom of Information Act [FOIA] (5 U.S.C.§ 552),1966 • All federal agency records (identifiable, existing unpublished records)were to be made available promptly to: • Any person, individual or corporate • Citizen or foreign upon request, subject to a few exceptions such as National security or invasion of privacy • Burden of proof for withholding was placed on government

  8. Act was passed despite objections • The request must ask for particular records rather than for information • The request must be specific enough to allow an agency employee familiar with the subject to locate a record in a reasonable time • FOIA prescribes a 10 day turnaround • Actual processing takes much longer • By law, fees are only allowed to recovery the costs of making the information available.

  9. Most requests come from businesses • In 1992 the federal government spent $108 million processing FOIA requests, for which it collected $8 million in fees. • Filing FOIA requests for FOIA queries about your own company, “lets you know what your competition knows about you.” • Since 9/11 greater restrictions have been placed upon access to information • Applies to infrastructure, public health issues • Does this provide greater or lesser security? 

  10. Problems with classified information • What you don’t know CAN hurt you • Suppression of information can inhibit both: • Scientific research • Political debate • Environmental regulation relies heavily on monitoring

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