Chapter 43

Subpoena ad testification

"To testify" is an ordinary subpoena. It is a writ, or order, compelling a witness to appear at an agency hearing.

Subpoena Duces Tecum

"bring it with you" compels an individual or organization to hand over books, papers, records, or documents to the agencyConsider

Administrative Law Judge (ALj)

-Requires that before the hearing takes place, the agency must issue a notice that includes the facts and law on which the complaint is based, the legal authority for the hearing, and its time and place. - Complaint -- Answer -- Hear before Administrative Law Judge -- Oder of Administrative Law Judge -- Appeal to Governing Board of Agency -- Final Agency Order -- Appropriate Court for Review of Agency Decision -- Court Order

Public Accountability

- As a result of growing public concern over the powers exercised by administrative agencies, Congress passed several laws to make agencies more accountable through public scrutiny.

Informal Agency Actions

-A rule that states an agency's interpretation of its enabling statute's meaning is an "interpretive rule" has binding legal and effect unless overturned by a court. -Rather than take the time to conduct notice-and-comment rulemaking, agencies have increasingly been more informal methods of policymaking, such as issuing interpretive rules and guidance documents.

The Final Rule

-After the agency reviews the comments, it drafts and publishes it in the Fed Register. The final rule must contain a "concise general statement of basis and purpose. -Have binding legal effect unless the courts later overturn them.

Federal Executive Agencies

-Cabinet departments of the executive branch, which assist the president in carrying out executive functions, and the sub-agencies within the cabinet departments. -Single Administrator, director, or secretary who is appointed by the president to oversee the agency and can be removed by the president at any time.

Inspections and Tests

-Can be searching an office, factory, or some other business facility = only want to gain evidence of a regulatory violation. - Administrative inspection = tests cover a wide range of activities, including safety inspections of underground coal mines, safety tests of commercial equipment and automobiles, and environmental monitoring of factory emissions.

Legislative Controls

-Congress gives power to an agency through enabling legislation and can take power away - or even abolish an agency altogether - through subsequent legislation -Required to fund an agency, and enabling legislation usually sets certain time and monetary limits on the funding's of particular programs. -Congress has the authority to investigate and implementation of its laws and the agencies that it has created.

Agency Creation and Powers

-Congress passes enabling legislation specifying the name, purposes, functions, and powers of the agency being created. -An enabling statute defines the agency's legal authority Ex. Federal Trade Commission Act was the enabling legislation for (set up) the Federal Trade Commission Prevent "unfair methods of competition

The Administrative Procedure Act

-Congress specifies certain procedural requirements in an agency's enabling legislation. -In the absence of any directives from Congress concerning a particular agency procedure, and Administrative Procedure Act (APA) applies.

Negotiated Settlement

-Depending on Agency, negotiations may involve a simple conversation or a series of informal conferences. -Settlement is an appealing option to firms for two reasons: A) To avoid appearing uncooperative B) To avoid the expense involved in formal adjudication proceedings and in possible later appeals.

Agency

-Enable statue defines its legal authority. -Cannot regulate beyond the powers granted by the statue, and it may be required to take some regulatory action by the terms of that statute.

Executive Controls

-Exercises control over agencies both through the president's power to appoint federal officers and through the president's veto power -President may veto enabling legislation passed by Congress or congressional attempts to modify an existing agency's authority.

buraucracy

-Fourth branch of the U.S. Government.

Agencies Powers'

-Legislature (Rule-making) -Executive Branch (Enforcement) -Court (Adjudication)

Enforcement

-Often, agencies enforce their own rules. - After a final rule is issued, agences conduct investigations to monitor compliance with the rule of the terms of the enabling statute.

Government of the Sunshine Act

-Open meeting law -Requires that "every portion of every meeting of an agency" be open to "public observation" -Requires that the public be provided with adequate advance notice of scheduling meetings and agendas. -Closed meetings are permitted in the following situations: A) The subject of the meeting concerns accusing any person of crime. B) Open meetings would frustrate implementation of future agency actions. C) The subject of the meeting involves matters relating to future litigation of rulemaking.

Search Warrants

-Order directing law enforcement officials to search a specific place for a specific item and seize it for the agency. -The Fourth Amendment protects against unreasonable searches and seizures by requiring that in most instances a physical search for evidence must be conducted under the authority of a search warrant.

Administrative Agencies found Where

-Spread throughout government -Can be federal, state, or even local.

The Arbitrary and Capricious Test

-The APA gives courts power to hold agencies' actions "arbitrary and capricious" if they are not in compliance with constitutional due process.

Exhaustion Doctrine

-The party seeking court review must first exhaust all administrative remedies under this. -The complaining party normally must have exhausted all available administrative remedies before seeking court review

Hearing Procedures

-Vary from agency to agency, but often resembles a trial. -Generally exercise substantial discretion over the type of procedure that will be used. -Formal Adjudication - Prior to the hearing, the parties are permitted to undertake discovery - involving dispositions, interrogatories, and requests for documents or other information. -Trials and Administrative Agency Hearing - normally much more information, including hearsay (Secondhand information), can be introduced as evidence during an administrative hearing.

Administrative Agency

-When Congress - or a state legislatures - enacts legislation, it typically adopts a rather general statute and leaves its implementation to this. -Creates the detailed rules and regulations necessary to carry out the statute.

Judicial Controls

-exercises control over agency powers through the courts' review of agency actions -

The Role of Administrative Law Judge

-presides over hearing and has the power to administer oaths, take testimony, rule on questions of evidence, and make determinations of fact -The APA also prohibits Ex Parte (private) communicationse between the ALJ and any party to an agency proceeding, include the agency and the company involved.

Freedom of Information Act

-requires the federal government to disclose certain records to any person on request, even if no reason is given for the request -All federal government agencies must make their records available electronically on the Internet and in other electronic formats.

Enabling Legislation EX:

1) Create "rules and regulations for the purpose of carrying out the Act" 2) Conduct investigations of business practices 3) Obtain reports from interstate corporations concerning their business practices. 4) Investigate possible violations of federal antitrust statutes. (The FTC shares this task with the Antitrust Division of the U.S. Department of Justice). 5) Publish findings of its investigations 6) Recommend new legislation 7) Hold trial-like hearings to resolve certain trade disputes that involve the FTC regulations or federal antitrust.

Standards of Arbitrary and Capricious Rule

1) Failed to provide a rational explanation for its decision. 2) Changing its prior policy without justification. 3) Considered legally inappropriate factors. 4) Entirely failed to consider a relevant factor 5) Rendered a decision plainly contrary to the evidence.

Small Business Regulatory Enforcement Fairness Act

1) Federal agencies must prepare guides that explain in plain English how small business can comply with federal regulations. 2) Congress may review new federal regulations for at least sixty days before they take effect, giving opponents of the rules time to present their arguments 3) The courts may enforce the Regulatory Flexibility Act. This provision helps to ensure that federal agencies will consider ways to reduce the economic impact of new regulations on small business. 4) The Office of the National Ombudsman at the Small Business Administration was set up to receive comments form small businesses about their dealings with federal agencies. Based on these comments, Regional Small Business Fairness Boards rate the agencies and publicize their findings.

Consider factors of Investigation

1) The purpose of the investigation - An investigation must have a legitimate purpose. Harassment is an example of an improper purpose. An agency may not issue an administrative subpoena to inspect business records if the motive is to harass or pressure the business into settling an unrelated matter. 2) The relevance if the information being sought - Information is relevant if it reveals that the law is being violated or if it assures the agency that the lay is being violated or if it assures the agency that the law is not being violated. 3) The specificity of the demand for testimony or documents - A subpoena must, for instance, adequately describe the material being sough. 4) The burden of the demand on the party from whom the information is sought - For instance, the cost to the company of copying requested documents or providing digital information may become burdensome.

Notice-and-comment rulemaking

1. notice of the proposed rulemaking 2. a comment period 3. the final rule

Executive Departments and Important Sub-agencies

826

Selected Independent Regulatory Agencies

827

Chevon Case

835-836

Agencies provide a comprehensive regulatory scheme

Administrative agencies in government work together and share the responsibility of creating and enforcing particular regulations

Checks and Balances

All each branch of government to act as a check on the actions of the other two branches.

Administrative Process

All federal agencies must follow specific procedural requirements as they go about fulfilling their three basic functions: rulemaking, enforcement, and adjudication

independent regulatory Agencies

Federal regulatory agencies that are independent, thus not fully under the power of the president. Ex. Federal Trade Commission, Securities and Exchange Commission.

1934 Communications Act

Established a system of limited-term broadcast licenses subject to various conditions.

Initial Order

Following a hearing, the ALJ renders an initial order, or decision, on the case.

Comment Period

Following publication in the Federal Register, the agency must allow ample time for public comment. The agency need not respond to all comments, but it must respond to any significant comments that bear directly on the proposed rule by either modifying the proposed rule or explaining why the modification was not made.

Legislative Regulations

Have a binding effect.

Formal Complaints

If a settlement cannot be reached, the agency may issue a formal complaint against the suspected violator

Failure to Follow Rulemaking Procedures.

If an agency fails to follow proper rulemaking procedures, the resulting rule may not be binding.

Final Order

If no party appeals the case, ALJ's decision becomes the final order of the agency

Legislative Rule (Substantive Rules)

Legally binding as laws that congress passes.

Impetus of Rulemaking

May come from various sources, including Congress and the agency itself.

Enabling Legislation

Specifies the name, purpose, functions, and powers of the agency being created.

Fair Notice

The APA also includes many requirements concerning the notice that regulatory agencies must give to those affected by its regulations.

Judicial Deference to Agency Decisions

The courts tended to accept the agency's judgement, often citing the agency's great expertise in the subject area of the regulation.

Rulemaking

The formulation of new regulations, or rules. A rule as "an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law and policy.

Notice of the Proposing Rulemaking

When a federal agency decides to create a new rule, the agency publishes a notice of the proposed rulemaking proceedings in the federal register. The federal register is a daily publication of the executive branch that prints government orders, rules, and regulations.

Regulatory Flexibility Act

Whenever a new regulation will have a significant impact upon a substantial number of small entities, the agency must conduct a regulatory flexibility analysis.

Delegation Doctrine

courts interpret these passages as granting Congress the power to establish administrative agencies and delegate to them the power to create rules for implementing those laws

Agency Orders

initial orders and then final order

Subpoenas

legal documents that require a person to testify in a certain matter

Interpretive Rules

simply declare policy and do not affect legal rights or obligations

Adjudication

the resolution of the dispute through a hearing conducted by the agency