Ch 23

subpoena duces tecum

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

Types of agencies

- federal executive agencies - independent regulatory agencies

Subpoenas

-Subpoena ad testificandum -subpoena duces tecum -limits

limits on subpoenas

-The purpose of the investigation -the relevance of the information being sought -the specificity of the demand for testimony or documents -the burden of the demand on the part from whom the information is sought

Notice of Proposed 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 -notice states where and when the proceedings will be held, the agency's legal authority for making the rule (usually its enabling legislation), and the terms or subject matter of the rule.

administrative law The practical significance of administrative law

-benefits to society, environment, etc result from __ ___, but there are great costs to businesses

implementation The practical significance of administrative law

-congress or state legislature usually adopts a general statute and leaves its ___ (the details) to an administrative agency

Checks and balances agency powers and constitution

-executive -legislative -judicial

Agency orders adjudication

-judge ordering you to pay or something -can be appealed to agency board -can be appealed to federal appellate system

Negotiated Settlements

-purpose is to rectify the problem to the agency's satisfaction and eliminate the need for additional proceedings.

Hearing Procedures Hearsay

-similar to trial -includes discovery -burden of proof placed on agency -big difference is __ can be used as evidence

Agency enforcements The administrative process

1. inspections 2. subpoenas 3. search warrants

Adjudication

1. negotiated settlements 2. Formal complaints 3. the role of the administrative law judge 4. Hearing procedures 5. agency orders

notice-and-comment rulemaking 3 basic steps

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

delegation doctrine

A doctrine based on Article I, Section 8, of the U.S. Constitution, which has been construed to allow Congress to delegate some of its power to make and implement laws to administrative agencies. The delegation is considered to be proper as long as Congress sets standards outlining the scope of the agency's authority.

interpretive rules

A nonbinding rule or policy statement issued by an administrative agency that explains how it interprets and intends to apply the statutes it enforces.

Final rule

After the agency reviews the comments, it drafts the final rule and publishes it in the Federal Register. The final rule can include modifications based on the public comments. If substantial changes are made, however, a new proposal and a new opportunity for comment are required. The final rule is later compiled along with the rules and regulations of other federal administrative agencies in the Code of Federal Regulations.

Exhaustion doctrine

Agency actions are not automatically subject to judicial review, however. The party seeking court review must first exhaust all administrative remedies under what is called the __ __ before seeking court review.

The role of the administrative law judge

An ALJ presides over the hearing and has the power to administer oaths, take testimony, rule on questions of evidence, and make determinations of fact. Technically, the ALJ, who works for the agency prosecuting the case, is not an independent judge. Nevertheless, the law requires an ALJ to be unbiased.

legislative rules

An administrative agency rule that carries the same weight as a congressionally enacted statute. -also called SUBSTANTIVE RULES

notice-and-comment rulemaking

An administrative rulemaking procedure that involves the publication of a notice of a proposed rulemaking in the Federal Register, a comment period for interested parties to express their views on the proposed rule, and the publication of the agency's final rule in the Federal Register.

Independent regulatory agencies

Federal Trade Commission and the Securities and Exchange Commission (SEC)

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. -give interested parties the opportunity to express their views on the proposed rule in an effort to influence agency policy

Fair notice Administrative Procedure Act (APA) of 1946

For instance, an agency may change the way it applies a certain regulatory principle. Before the change can be carried out, the agency must give __ __ of what conduct will be expected in the future.

subpeons

If a business denies the regulatory agency an inspection, then they may resort to getting a __

Formal Complaint

If a settlement cannot be reached, the agency may issue a ___ ___ against the suspected violator.

exhaustion doctrine

In administrative law, the principle that a complaining party normally must have exhausted all available administrative remedies before seeking judicial review.

initial order

In the context of administrative law, an agency's disposition in a matter other than a rulemaking. An administrative law judge's ___ ___ becomes final unless it is appealed.

Informal agency actions

Interpretative Rules - (specifically exempted from the APA's requirements) -simply declare policy and do not affect legal rights or obligations. -can be important because it warns regulated entities that the agency may engage in formal rulemaking if they ignore its informal policymaking.

Subpoena ad testificandum

It is a writ, or order, compelling a witness to appear at an agency hearing -under oath

administrative law judge (ALJ)

One who presides over an administrative agency hearing and has the power to administer oaths, take testimony, rule on questions of evidence, and make determinations of fact.

agencies negotiated settlements

Settlement is also an attractive option for ___. To conserve their resources and avoid formal actions, administrative agencies devote a great deal of effort to giving advice and negotiating solutions to problems.

firms negotiated settlements

Settlement is an appealing option to ___ for two reasons: to avoid appearing uncooperative and to avoid the expense involved in formal adjudication proceedings and in possible later appeals

"rule" Rulemaking procedure The administrative process

The APA defines a "___" as "an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law and policy"

1. Failed to provide a rational explanation for its decision 2. Changed 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

The Arbitrary and Capricious Test includes factors such as: 1. 2. 3. 4. 5.

final order

The final decision of an administrative agency on an issue. If no appeal is taken, or if the case is not reviewed or considered anew by the agency commission, the administrative law judge's initial order becomes the final order of the agency.

Independent regulatory agencies

The president's power is less pronounced in regard to ___ ___, whose officers serve for fixed terms and cannot be removed without just cause.

The administrative process

The procedure used by administrative agencies in fulfilling their three basic functions: rulemaking, enforcement, and adjudication.

rulemaking

The process by which an administrative agency formally adopts a new regulation or amends an old one. -major function of an administrative agency

adjudication

The process of resolving a dispute by presenting evidence and arguments before a neutral third-party decision maker in a hearing conducted by the agency

Federal Executive agencies

These agencies are formed to help the president carrying out executive functions. They include the cabinet departments of the executive branch and the subagencies within the cabinet department.

Administrative Procedure Act (APA) of 1946

This is a general statute which details the procedural requirements of all federal agencies. Congress can change the procedural requirements for an agency in its enabling statute. But in the absence of the specific directive from congress, agencies follow APA.

The Arbitrary and Capricious Test

Under this standard, parties can challenge regulations as contrary to law or as so irrational that they are arbitrary and capricious.

Enabling legislation name purpose Agency creation and powers

__ __ is passed by congress to create an administrative agency. It specifies the __, purpose, ___, and powers of the agency

Warrants x2

___ are not required to conduct searches in highly regulated industries. Firms that sell firearms or liquor, for instance, are automatically subject to inspections without __

Search warrants agency enforcements

an order directing law enforcement officials to search a specific place for a specific item and seize it for the agency.

Executive

appointment of officers and veto power

judicial

court review of agency actions but this is subject to the Exhaustion doctrine

Judicial Deference to Agency Decisions

courts give deference to the agency decisions on factual questions and Chevron deference to questions of law

The Arbitrary and Capricious Test

courts should hold "unlawful and set aside" agency actions found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law"

Legislative

enabling legislation allows congress to abolish an agency and to defund

Exhaustion doctrine

have to exhaust every administrative process before you can appeal in courts

inspections

including safety inspections of underground coal mines, safety tests of commercial equipment and automobiles, and environmental monitoring of factory emissions. An agency may also ask a firm or individual to submit certain documents or records to the agency for examination.

Independent regulatory agencies

these agencies are outside the major executive departments