FINA 2244 Chapter 17

Administrative Law: Interpretive Rules

A) Statements issued by an agency to provide its staff and the public with guidance regarding the interpretation of a substantive rule or a congressional statute B) In contrast to legislative rules, interpretative rules are exempt from the notice and comments requirement of the APA.

Judicial Review

A) The APA sets the procedural requirements for a party seeking court of appeals review of an agency decision B) Most appeals concern the legitimacy of regulations and whether the penalty issues with justified C) Judicial Review: external check on agency power D) When judicial review can occur E) Scope of Judicial Review

Administrative Agencies: Preface: Creating an Administrative Agency

1: An administrative agency is an authority of the govt., other than a legislature or a court, created to administer a particular law. 2: Congress gives an agency power and authority through a delegation of powers. 3: A statute delegating those powers to the agency is an enabling statute, sometimes called an organic statute. 4: Why create an agency?

Administrative Agencies: Preface

A) Administrative agencies are a major part of both state and federal government. They are the primary tool through which local, state, and federal governments perform regulatory functions. B) Creating an Administrative Agency

Administrative Law: Types of Rules: Substantive or Legislative Rules

A) Administrative regulations with the same force of law as statutes enacted by Congress B) The rule is Federal law C) Large businesses have their own lobbyists in Washington to keep an eye on agencies' activities

Administrative Law

A) Consists of legal rules that define the authority and structure of hundreds of administrative agencies B) Primary sources of administrative law C) APA defines the procedural rules and formatives for federal agencies D) Rule Making E) Types of Rules F) Rulemaking Procedure

Administrative Law: Procedural Rules

A) Detail an agency's structure and describe its method of operation and its internal practices. B) Once procedural rules are issued, the agency is bound by them.

Controls on Agencies

A) Direct controls on agencies B) Indirect Controls on Agencies

Enforcing Rules

A) Preface B) Investigative Powers

Enforcing Rules: Preface

Enforcement means that agencies must gather information and investigate

Enforcing Rules: Investigative Powers

I) Information about compliance with federal law is obtained in three basic ways: a: Regulated businesses are required to self-report. b: Direct observation determines if a business is following the law. c: Agency subpoena power is used to require a business to produce documents. II) Monitoring and Self-Reporting Requirement a: Reporting information on violations can lead to punishment. b: Failing to report violations or reporting false information almost always leads to heavier penalties III) Direct Observation by Agencies a: No warrant is required if an agency's evidence is obtained from an "open-field" observation b: through areas with public access IV) Agency Subpoena power- a legal instrument that directs the person receiving it to appear at a specific time and place to testify or produce documents V)Enforcement Power a: To ensure compliance, agencies can sue in federal court to seek civil and criminal penalties b: When charges are brought against a party, it works with the Dept. of Justice (Attorney General), which usually handles the prosecution of the case c: Informal Agency Procedures 1) Informal procedures allow leeway in forcing compliance 2) Informal procedures include: tests and inspection processing applications and permits, negotiations, and settlement; threat of publicity 3) When a problem is discovered, manufacturers will voluntarily withdraw products 4) A business unhappy with an agency sanction resulting fron informal procedures may seek review d: Formal Agency Procedures 1) Adjudicatory hearing- formal agency process under APA rules, which are similar to those followed in trial 2) Administrative law judge (ALJ)-civil service employee of the agency, usually a staff attorney

Control on Agencies: Indirect Controls on Agencies

I: Congress made it easier for parties outside an agency to obtain information in the possession of the agency. II: Freedom of Information Act- (FOIA) makes most documents held by federal agencies available to the public III: Privacy Act- intended to give citizens more control over what information is collected about them and how that information is used IV: Government in the Sunshine Act- limits secret meetings by agencies.

Administrative Agencies: Preface: Creating an Administrative Agency: Why create an agency

I: Created when a problem requires expertise and supervision II: Ex) Congress addressed air pollution, delegated responsibility to EPA

Administrative Law: Types of Rules

I: Substantive or Legislative Rules II: Interpretative Rules III: Procedural Rules

Administrative Law: Rulemaking Procedure

I: Substantive rules are usually the most important. II: Proposed rules are drafted by agency staff, reviewed internally, and approved by the head of the agency. III: Major rules usually require interagency review at the Office of Management and Budget to ensure they do not cause conflicts with other agencies. IV: In either case, once the agency issues the final rule, it may be appealed to the agency itself, after which appeal is made to the U.S. Court of Appeals.

Administrative Law: Primary sources of administrative

I: The enabling statutes of administrative agencies II: The Administrative Procedures Act (APA) III: Rules issued by administrative agencies IV: Court decisions reviewing the validity of agency actions

Controls on Agencies: Direct controls on agencies

I: The most immediate control mechanism enjoyed by Congress is the ability to control agency activity through the budget process. II: Agency appropriations and Executive Orders- the president or Congress can recommend cuts in the agency's budget if either is opposed to some of the agency's activities III: Cost-Benefit and Risk Analysis- A) Mandatory cost-benefit analysis requires agencies to weigh the costs and benefits of new regulations. B) When the costs exceed the benefits derived from a regulation, the regulation is more easily challenged for reasonableness.

Judicial Review: When judicial review can occur:

I: The party making the request must satisfy some important procedural requirements: A) Jurisdiction- the complaining party may seek judicial review only in courts that have power to hear the case. Most statutes specify which courts have jurisdiction to hear appeals of agency action; putting all challenges of a particular type in one court reduces the changes of inconsistent decisions across the courts B) Reviewability- an appellate court has the ability to reconsider an agency decision to determine whether correction or modification is needed. C) Standing- a party seeking judicial review must demonstrate that it incurred an injury recognized by law as a result of the agency's action D) Ripeness- there can be no judicial review until the agency's decision is final so that the court will have the final issues in the case before it and not hypothetical questions or unresolved disputes E) Exhaustion- this is a "gatekeeping" device, requiring that a party seeking judicial review must have sought relief through all possible agency appeal process before seeking review by the courts II: Without limits on judicial review, the courts could intrude into areas of agency responsibility, and they would be flooded with more cases.

Administrative Law: Rulemaking

I: Through the process of rulemaking, agencies can issue formal rules or regulations, provide informal policy guideline docs.

Administrative Agencies

Preface