Administrative Law

Chapter 44Administrative LawCopyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.44-2Introduction to Administrative LawAdministrative Law: Consists of substantive and procedural rules created by administrative agencies Administrative Agency: Any body created by the legislative branch (Congress) to carry out specific dutiesReferred to as the unofficial “fourth branch of government”First federal administrative agency: Interstate Commerce Commission (ICC)Created by Congress through “enabling legislation”, a statute that specifies names, functions and specific powers of agencyInvestigative powers include power to issue subpoena/subpoena duces tecumAdministrative Law Judge: Presides over administrative hearing; may attempt to encourage parties to settle, but has power to enter binding decision44-3Types of Administrative AgenciesExecutive Agency: Generally within executive branch of government, under a “cabinet-level” department; also referred to as “cabinet-level” agencyExamples include Federal Aviation Agency (FAA) and Food and Drug Administration (FDA)Independent Agency: Governed by board of commissioners appointed by president, with “advice and consent” of U.S. SenateExamples include Federal Trade Commission (FTC) and Securities and Exchange Commission (SEC)Hybrid Agency: Characteristics of an executive and independent agencyExample: Environmental Protection Agency (EPA)44-4Exhibit 44-1: Major Administrative AgenciesIndependent AgenciesCommodity Futures Trading Commission (CFTC)Consumer Product Safety Commission (CPSC)Equal Employment Opportunity Commission (EEOC)Federal Communications Commission (FCC)Federal Trade Commission (FTC)Interstate Commerce Commission (ICC)National Labor Relations Board (NLRB)Nuclear Regulatory Commission (NRC)Securities and Exchange Commission (SEC)44-5Exhibit 44-1: Major Administrative Agencies (Continued)Executive AgenciesFederal Deposit Insurance Corporation (FDIC)General Services Administration (GSA)International Development Corporation (IDC)National Aeronautics and Space Administration (NASA)National Science Foundation (NSF)Occupational Safety and Health Administration (OSHA)Office of Personnel Management (OPM)Small Business Administration (SBA)Veterans Administration (VA)44-6Administrative Procedures Act (APA) Imposes specific guidelines on agency rule-making:Informal Rule-Making (“Notice-and-Comment” Rule-Making): Proposed rule published in Federal Register, with opportunity for public commentFormal Rule-Making: Publication of proposed rule in Federal Register, then formal public hearing (including complete transcript)Hybrid Rule-Making: Combines best features of formal and informal rule-making; proposed rule published in Federal Register, with opportunity for public submission of written comments, then informal public hearingExempted Rule-Making: Agency decides whether public participation allowed; includes rule-making proceedings with regard to “military or foreign affairs,” “agency management or personnel,” and “public property, loans, grants, benefits, or contracts” of an agency44-7Stages of Informal Rule-MakingAgency drafts rule in consultation with interested partiesProposed rule published in Federal RegisterInterested parties can file written comments on written draft within 30-day period from publication in Federal RegisterFinal draft of rule published in Federal Register 30 days before it takes effect; statement of its purpose and cost-benefit analysis must accompany its publicationAgency receives feedback from interested parties during 30-day period and makes decision on whether final draft should be rewritten. If not, it becomes law44-8Administrative Procedures Act (APA) (Continued)Interpretive Rules: Rules that do not create any new rights/duties; instead, a detailed statement of agency’s interpretation of existing law, and the steps a party must take to comply with existing lawPolicy Statements: General statements about directions of agency regarding rule-making or enforcement activities; no binding impact; do not directly affect legal rights/responsibilitiesRegulated Negotiation (“Reg-neg”): Mediated agreement (involving competing interest groups) on agency rule-making44-9Limitations on Agency PowersPoliticalStatutoryJudicialInformational44-10Freedom of Information Act (FOIA)Requires that federal agencies publish in Federal Register places where public can access agency informationAny individual or business may make a FOIA requestInformation may be obtained regarding how agency acquires and spends its moneyStatistics and/or information collected by agency on a particular topic is availableCitizens entitled to any records government has about themExemptions:National SecurityInternal Agency Matters (Example: Personnel Issues)Criminal InvestigationsFinancial InstitutionsIndividual’s Private Life44-11Government in Sunshine ActRequires that agency meetings be open to public if agency headed by collegiate body (i.e., two or more persons, with majority appointed by president upon “advice and consent” of Senate)Such agencies must keep records of closed meetingsPrivacy ActFederal agency may not disclose information about an individual to other agencies/organizations without that individual’s written consent44-12