Administrative Procedures Act 1946

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 dont know CAN hurt you
• Suppression of information can inhibit both
• Scientific research
• Political debate
• Environmental regulation relies heavily on
  monitoring