Administrative Law Final

Five Rule Making Procedures:

1. Formal 2. Informal 3.Exempted 4. Hybrid 5. Negotiated

Two types of rule making:

1. Legislative rules 2. Interpretive rules

When can an agency require record keeping and recording from companies/individual?

1. Must have jurisdiction over subject matter and individual/ company 2.Must be reasonable or not burdensome on individual 3. Information cannot be privileged

Three parts to formal rule making:

1. Notice 2. Hearing 3. Actual rule

Steps to warrant a criminal search:

1. Probable cause 2. Stated in an oath or affidavit 3. Specific reason to search

Two types of legislative rules:

1. Procedural 2. Substantive

Three types of immunity:

1. Transitional immunity 2. Derivative use 3. Use immunity

5 w's to agency rule making:

1. What is it? 2. Why agency rule making? 3. Why the agency? 4. Where does the agency get the power to write rules? 5. Who does the rule making?

Three parts of informal rule making:

1.Notice 2. Participation 3. Concise statement of their basis and purpose

Agency is most likely to choose negotiated rule making when:

1.When they believe a balanced committee can be formed 2. When they feel the balanced committee can come to a consensus If balanced committee cannot come to a consensus then the agency will try another form of rule making, likely informal

Exempted rule making

Agency is exempt from both the notice and participation requirement, agency may issue a rule without giving interested parties a chance to participate, still must justify and explain their rule, used in matters of national security, military, foreign policy ect. used when it is impractical, unnecessary or contrary to public interests, when an agency issues a rule about their agencies management issues, more than a procedural rule but not substantive.

Who does the rule making?

Agency staff initiates the rule making process, the idea can come from the agency, government officials, or citizens. At the end, the presiding official of the agency issues the rule.

Purpose of inspections is not to uncover crimes

Are exceptions, FBI, their 4th amendment is not relaxed.

Courts have relaxed the standards for agencies inspections...

Aren't held to the same standard as police, easier for agencies to inspect then police.

Transitional immunity

Blanket/ total immunity, covers everything, shields a witness from prosecution for all offences related to the testimony provided, any independent evidence gained by the agency may not be used against them.

Interpretative Rule:

Clarify or explain existing agency rules, this is why we created the rule for and this is what it means, widely used in agencies, don't declare anything new, don't have the full force of statutes, come in the form of a memo or manual, tell a regulated person how to do something, not weighted as much as legislative rules.

5th amendment

Contains a lot of protections in addition to due process, the right against self-incrimination, only applies to individuals and not corporations, this privilege does not apply when the information is in the possession of third parties, an individual rights can be waived, can offer immunity.

Use immunity

Covers the least, only protects the witness from prosecution on what they testify to and not the derived evidence, only prohibits the government from using the witness's testimony against them.

Testing cannot be ______ in nature.

Criminal, tests cannot be used for criminal prosecution, however there are exceptions.

Informal Rule Making

Default position in rule making, unless otherwise told the agency is going to use informal, encourages comments from interested participants.

Where does the agency get the power to create rules?

Enabling act, not every agency can create formal rules.

Agencies have been given a very broad authority to enforce their mandate

Enabling act.

Authority to establish substantive rules must stem from _____

Enabling act.

Procedural (legislative) Rule-

Establish procedures necessary for the agency to function, day to day operations, similar to court rules, don't carry as much weight as court rules, all agencies can draft procedural rules.

Closely regulated businesses may be subject to completely warrantless searches

Ex. airports, bar, restaurants, nuclear power plant, look to the nature of the job.

Rule making purpose

Fill in gaps in legislative statutes.

Rules and regulations are directed towards:

Future conduct and applied towards large groups.

Rules are subordinate to statutes BUT

Have equal power when applied. If they butt heads the law always win.

Formal Rule Making

How agencies make rules, most formal, told how to do it by Congress, only the legislature can order formal rule making, Congress gives authority in Enabling Act, time consuming, expensive, very procedurally involved, not used often.

Inspections only occur when the area that is being observed is:

In an area where the owner or possessor has an expectation of privacy.

Hybrid rule making

Informal rule making "plus", falls between formal and informal rule making, allows for testimony and cross examination, rules are not specific, more involved the informal but not trial like, Congress AND the president can require this type, used when there are scientific steps necessary for the rule or when the topic is not common knowledge, notice is still the same as formal/informal, steps are different every time.

Many businesses prefer _____

Inspections, even though it's more invasive, it is less expensive.

Participation

Interested parties are given a chance to participate, written comments are used the most, oral can be used but not as often, no trial.

Concise statement of their basis and purpose

Issue a rule and make it concise and descriptive, vague statements made by the agency can be thrown out by the courts, if thrown out the agency must start over, doesn't happen often.

Rule making, delegated by Congress is a quasi _______ power.

Legislative.

Every individual has a _____ lower expectation of privacy at an office rather than a home.

Lower.

Hearing

Must be evidentiary in nature, trial like, formal procedure, agency and interested parties present evidence, rules of evidence much more relaxed, allow for written testimony to be substituted for oral testimony.

Immunity

Person can testify and receive something in return, agency must get approval of attorney general before offering immunity.

When testing employees must weigh the _______

Privacy of individuals vs. compelling governmental interest to protect the safety of the public.

No relaxed 4th amendment when searching _____.

Private home

Inspections take place at public business and not ____.

Private home.

Administrative warrants have a lower standard, do not require _____ ______.

Probable cause.

Notice

Proposed rule must be published in federal register, legal authority to act (enabling act), no date for formal hearing, due date for written comments or date an agency will hear oral arguments.

4th amendment

Protects against UNREASONABLE searches and seizures.

Observations in _____ places are not considered searches.

Public.

Instead, administrative agencies require ______.

Reasonable inspection standards for a business.

Agency engage in rule making like legislators engage in law making.

Rules are agencies law making.

Why agency rule making?

Solve problems of public concern, implement policy, full fill agency requirement.

Substantive (legislative) Rule-

Substance rules, rules that have the full force of laws, carrying out the Enabling act, formal process to create these rules, no inherit authority to create these rules, Congress must specifically delegate this power, Courts generally may not substitute their judgement.

Why the agency?

The agency directly interacts with the citizens within their area of expertise. Agency is in a better position to make rules regarding citizen's day to day operations. Lightens burden to legislators.

What is it?

The details the agency established to implement the agency's enabling act and the laws of the legislator.

Notice

To the public that there is going to be a hearing where they are going to use their formal rule making power, date, time and place of hearing, substance of the proposed rule, must include legal authority to act, cite their Enabling act, only gets posted to the federal register.

Negotiated rule making

Used by agencies when representatives from the governmental agency and affected interest groups negotiate, form where public is most involved, newest form, issued in federal register, public participation after the rule is always written because they were there when drafting the rule, unusual to have oral arguments, agencies can choose to use this form, the agencies decision to use this form cannot be reviewed by the court for it is an aspect of their discretion

Derivative use

Used most by agencies, shields your witnesses from prosecution based on the information the government learns from the testimony and any derived evidence, whatever the witness says they cannot be prosecuted on, key difference government CAN prosecute based on independently obtained evidence, not as many protections for the witness.

When testing can be prosecuted as criminal:

When the nature of the job threatens public safety, ex. a drunk person working at a nuclear power plant

Actual rule:

When the rule is issued by an agency it is called "finding and conclusions", must be in writing, include the actual rule and steps of how they got there or the reason for the rule, published in the federal register, becomes final in 30 days if not appealed.