1. Chapter 44 Administrative Law Copyright © 2012 by The McGraw-Hill Companies, Inc. All rights reserved. McGraw-Hill/Irwin

2. Introduction to Administrative Law Administrative Law: Consists of substantive and procedural rules created by administrative agencies Administrative 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 duties Administrative Agency: Any body created by the legislative branch (Congress) to carry out specific duties Referred to as the unofficial fourth branch of government Referred to as the unofficial fourth branch of government First federal administrative agency: Interstate Commerce Commission (ICC) First federal administrative agency: Interstate Commerce Commission (ICC) Created by Congress through enabling legislation, a statute that specifies names, functions and specific powers of agency Created by Congress through enabling legislation, a statute that specifies names, functions and specific powers of agency Investigative powers include power to issue subpoena/subpoena duces tecum Investigative powers include power to issue subpoena/subpoena duces tecum Administrative Law Judge: Presides over administrative hearing; may attempt to encourage parties to settle, but has power to enter binding decision Administrative Law Judge: Presides over administrative hearing; may attempt to encourage parties to settle, but has power to enter binding decision 44-2

3. Types of Administrative Agencies Executive Agency: Generally within executive branch of government, under a cabinet-level department; also referred to as cabinet-level agency Executive Agency: Generally within executive branch of government, under a cabinet-level department; also referred to as cabinet-level agency Examples include Federal Aviation Agency (FAA) and Food and Drug Administration (FDA) Examples 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. Senate Independent Agency: Governed by board of commissioners appointed by president, with advice and consent of U.S. Senate Examples include Federal Trade Commission (FTC) and Securities and Exchange Commission (SEC) Examples include Federal Trade Commission (FTC) and Securities and Exchange Commission (SEC) Hybrid Agency: Characteristics of an executive and independent agency Hybrid Agency: Characteristics of an executive and independent agency Example: Environmental Protection Agency (EPA) Example: Environmental Protection Agency (EPA) 44-3

4. Exhibit 44-1: Major Administrative Agencies Independent Agencies Commodity Futures Trading Commission (CFTC) Commodity Futures Trading Commission (CFTC) Consumer Product Safety Commission (CPSC) Consumer Product Safety Commission (CPSC) Equal Employment Opportunity Commission (EEOC) Equal Employment Opportunity Commission (EEOC) Federal Communications Commission (FCC) Federal Communications Commission (FCC) Federal Trade Commission (FTC) Federal Trade Commission (FTC) Interstate Commerce Commission (ICC) Interstate Commerce Commission (ICC) National Labor Relations Board (NLRB) National Labor Relations Board (NLRB) Nuclear Regulatory Commission (NRC) Nuclear Regulatory Commission (NRC) Securities and Exchange Commission (SEC) Securities and Exchange Commission (SEC) 44-4

5. Exhibit 44-1: Major Administrative Agencies (Continued) Executive Agencies Federal Deposit Insurance Corporation (FDIC) Federal Deposit Insurance Corporation (FDIC) General Services Administration (GSA) General Services Administration (GSA) International Development Corporation (IDC) International Development Corporation (IDC) National Aeronautics and Space Administration (NASA) National Aeronautics and Space Administration (NASA) National Science Foundation (NSF) National Science Foundation (NSF) Occupational Safety and Health Administration (OSHA) Occupational Safety and Health Administration (OSHA) Office of Personnel Management (OPM) Office of Personnel Management (OPM) Small Business Administration (SBA) Small Business Administration (SBA) Veterans Administration (VA) Veterans Administration (VA) 44-5

6. Administrative 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 comment Informal Rule-Making (Notice-and-Comment Rule-Making): Proposed rule published in Federal Register, with opportunity for public comment Formal Rule-Making: Publication of proposed rule in Federal Register, then formal public hearing (including complete transcript) Formal 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 hearing 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 hearing Exempted 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 agency Exempted 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 agency 44-6

7. Stages of Informal Rule-Making Agency drafts rule in consultation with interested parties Agency drafts rule in consultation with interested parties Proposed rule published in Federal Register Proposed rule published in Federal Register Interested parties can file written comments on written draft within 30-day period from publication in Federal Register Interested parties can file written comments on written draft within 30-day period from publication in Federal Register Final draft of rule published in Federal Register 30 days before it takes effect; statement of its purpose and cost-benefit analysis must accompany its publication Final draft of rule published in Federal Register 30 days before it takes effect; statement of its purpose and cost-benefit analysis must accompany its publication Agency receives feedback from interested parties during 30-day period and makes decision on whether final draft should be rewritten. If not, it becomes law Agency receives feedback from interested parties during 30-day period and makes decision on whether final draft should be rewritten. If not, it becomes law 44-7

8. Administrative Procedures Act (APA) (Continued) Interpretive Rules: Rules that do not create any new rights/duties; instead, a detailed statement of agencys interpretation of existing law, and the steps a party must take to comply with existing law Interpretive Rules: Rules that do not create any new rights/duties; instead, a detailed statement of agencys interpretation of existing law, and the steps a party must take to comply with existing law Policy Statements: General statements about directions of agency regarding rule-making or enforcement activities; no binding impact; do not directly affect legal rights/responsibilities Policy Statements: General statements about directions of agency regarding rule-making or enforcement activities; no binding impact; do not directly affect legal rights/responsibilities Regulated Negotiation (Reg-neg): Mediated agreement (involving competing interest groups) on agency rule-making Regulated Negotiation (Reg-neg): Mediated agreement (involving competing interest groups) on agency rule-making 44-8

9. Limitations on Agency Powers Political Political Statutory Statutory Judicial Judicial Informational Informational 44-9

10. Freedom of Information Act (FOIA) Requires that federal agencies publish in Federal Register places where public can access agency information Requires that federal agencies publish in Federal Register places where public can access agency information Any individual or business may make a FOIA request Any individual or business may make a FOIA request Information may be obtained regarding how agency acquires and spends its money Information may be obtained regarding how agency acquires and spends its money Statistics and/or information collected by agency on a particular topic is available Statistics and/or information collected by agency on a particular topic is available Citizens entitled to any records government has about them Citizens entitled to any records government has about them Exemptions: Exemptions: National Security National Security Internal Agency Matters (Example: Personnel Issues) Internal Agency Matters (Example: Personnel Issues) Criminal Investigations Criminal Investigations Financial Institutions Financial Institutions Individuals Private Life Individuals Private Life 44-10

11. Government in Sunshine Act Requires 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) Requires 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 meetings Such agencies must keep records of closed meetings 44-11

12. Privacy Act Federal agency may not disclose information about an individual to other agencies/organizations without that individuals written consent 44-12