BUS607 Week 5 Discussion 1 Administrative Agencies

Administrative agencies

Administrative procedures Act

The Administrative Procedures Act is a federal law passed by Congress in 1946, which prevents the arbitrary exercise of governmental authority (McNollgast,2019). It provides procedural requirements for all “agency action,” which includes a wide range of things like rulemaking, adjudication, licensing and permits, grants, contracts, and investigative powers. The Administrative Procedures Act also establishes the terms and conditions under which agencies may take specific actions without following the procedures set forth by the Act, such as in emergencies. The Administrative Procedures Act is primarily a procedural regulation. Still, it has been used in cases to challenge agency action as well as being used to challenge rules that have not yet been promulgated (such as those proposed rules that are subject to public comment).

Factors that make agency rule arbitrary and capricious

A decision is arbitrary and capricious if the agency:

·         Has relied on factors that Congress has not intended to consider

·         Entirely failed to consider an essential aspect of the problem.

·         Explained its decision that runs counter to the evidence before the agency

·         Has been explained so implausibly that it could not be ascribed to a difference in view or product of agency expertise.

When relying on factors that Congress has not intended an agency to consider, the agency must show that: Congress has directly spoken to the precise question at issue or that the agency’s interpretation of its authority is permissible and reasonable.

Congress must clearly define the area of inquiry. A decision is arbitrary and capricious if it fails to consider an essential aspect of the problem. An agency may not rely on factors it could have but did not investigate because “the touchstone” for review of an agency’s decision is whether the decision was based on a consideration of relevant factors. In reviewing the merits of an agency decision, the Court must consider whether the agency considered all relevant factors.

Agency decisions are presumed to be based on a consideration of relevant factors. To make its decision, an agency must explain the decision that runs counter to the evidence before it.

The Court must weigh the plausibility of such an explanation by considering various factors. If a court can find no rational basis for a decision, it may properly find that the agency has acted arbitrarily."

The Court is not required to exhibit a naiveté from which ordinary citizens are free. Instead, the question is whether the agency had adequate reasons for its action and whether those reasons were based upon any facts reasonably known to the agency. If, after viewing the whole record, the Court determines that an adequate explanation exists and that the administrative body has proceeded according to law, there is no basis for holding that an agency action is arbitrary and capricious. The Court will not substitute its judgment for that of an agency. The Court will not substitute its judgment for that of the agency. When reviewing an agency’s decision, the Court generally focuses on whether the agency’s explanation is legally adequate. The Court will overturn an agency decision when it relies on factors that Congress has not intended it to consider, fails to consider an important aspect of the problem, or offers an explanation that runs counter to the evidence before it.

Laws on agencies and the public

Freedom of Information Act is a law in the United States which requires that most officers of the federal government and some officers of state governments share records with any member of the general public. The law grants citizens access to documents relating to a particular topic. This process is known as “FOIA” (Freedom of Information Act). The Act was created by President Lyndon B. Johnson in 1966, and it gives citizens the right to request specific records from state or federal agencies and ensures that they are disclosed quickly. FOIAs are mostly filed through email, fax, or another electronic form on a website maintained by each agency’s data-disclosure office. Some limits on disclosures exist under FOIA. The law does not allow disclosure of information that would constitute a clearly unwarranted invasion of personal privacy (“information about a living individual”), certain specific types of information, such as financial records and law enforcement files created prior to the appointment of an officer as a prosecutor or investigator.

The Government in Sunshine Act is a federal law that requires government bodies, including Congress and the executive branch, to release meeting minutes and other documents. The government in the sunshine act, or GISA, was passed by Congress in 2006. The purpose of the law is to require certain government bodies to disclose documents and other materials related to their operations. Specifically, the Administration must release meeting minutes that document agency decisions and activities; names of members who provide advice and recommendations; working versions of rules and regulations; contracts under $50,000; records made during national security investigations (NSI); records relating to investigations into alleged illegal drug activity by the U.S. The Act mandates the disclosure of materials such as written correspondence between members of a committee and their staff, printed transcripts of public hearings, and minutes of meetings held by committees or individual members without record keeping.

The Regulatory Flexibility Act is an act that requires Federal agencies to analyze the rule’s impact on small businesses and adjust their regulations accordingly. It also focuses on simplifying and standardizing the paperwork by removing duplication and unnecessary paperwork for small businesses (Freedman,2018). The Act was first passed by Congress in 1980 (Public Law 96-354) and was amended several times afterward. According to the U.S. Small Business Administration, the Regulatory Flexibility Act (RFA) of 1980 requires agencies to assess the impact of their rules on small businesses and to justify any requirements that may be burdensome to small businesses. The RFA was enacted in order to ensure that federal agencies consider small businesses when developing and implementing regulations that affect them. The RFA defines a “small business concern” as a business entity “which is independently owned and operated and which is not dominant in its field of operation.

The Small Business Regulatory Enforcement Fairness Act is an act that was passed by the 110th United States Congress in response to complaints from small business owners, and supporters representing them, about what they see as overly-burdensome actions of various federal agencies (Cole,2017). This Act allows for the establishment of a uniform policy for all agencies on how to deal with small businesses, including a maximum fine amount, something that’s not currently done by agencies such as OSHA or FTC. The Act also establishes an Office of Small Business Ombudsman within the U.S. The Small Business Regulatory Enforcement Fairness Act was signed into law by President George W. Bush on January 21, 2008. The law took effect immediately upon signing. The purpose of the Act is to improve the relationship between small businesses and federal agencies by reducing costs, unnecessary paperwork, and red tape for small businesses. The Act also allows small businesses to have more of a voice in regulatory enforcement policies made by federal agencies.

References

McNollgast, M. (2019). The political origins of the administrative procedure act. The Journal of Law, Economics, and Organization, 15(1), 180-217.

Cole, K. N. (2017). Small Business Regulatory Enforcement Fairness Act and the Regulatory Flexibility Act: Could a Single Word Doom the New NAAQS. Tul. Envtl. LJ, 11, 281.

Freedman, D. S., Singer, B., & Swain, F. S. (2018). The Regulatory Flexibility Act: Orienting Federal Regulation to Small Business. Dick. L. Rev., 93, 439.