1. Chapter 44 Administrative Law Chapter 44: Administrative Law
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2. Introduction to Administrative Law
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
Referred to as the unofficial “fourth branch of government”
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
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 consists of substantive and procedural rules created by administrative agencies. An administrative agency is any body created by the Congress to carry out specific duties. Administrative agencies are collectively referred to as the unofficial “fourth branch of government.” The first federal administrative agency was the Interstate Commerce Commission, or “ICC.” The ICC was created by Congress through “enabling legislation,” a statute that specifies the names, functions and specific powers of an agency. Investigative powers of administrative agencies include the power to issue a subpoena or a subpoena duces tecum. An administrative law judge presides over an administrative hearing. The administrative law judge may attempt to encourage the parties to settle, but has the ultimate power to enter a binding decision.

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
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
Examples include Federal Trade Commission (FTC) and Securities and Exchange Commission (SEC)
Hybrid Agency: Characteristics of an executive and independent agency
Example: Environmental Protection Agency (EPA)
Types of administrative agencies include executive agencies, independent agencies, and hybrid agencies. An executive agency, also referred to as a “cabinet-level” agency, is within the executive branch of government, under a “cabinet-level” department. The Federal Aviation Agency (FAA) and the Food and Drug Administration (FDA) are examples of executive agencies. An independent agency is governed by a board of commissioners appointed by president, with the “advice and consent” of the United States Senate. The Federal Trade Commission (FTC) and the Securities and Exchange Commission (SEC) are examples of independent agencies. A hybrid agency has the characteristics of both an executive and an independent agency. The Environmental Protection Agency (EPA) is an example of a hybrid agency.

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

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

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
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
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
The Administrative Procedures Act imposes specific guidelines on agency rule-making. With regard to informal rule-making, also known as “notice-and-comment” rule-making, a proposed rule is published in the Federal Register, with an opportunity for public comment. In formal rule-making, the proposed rule is published in the Federal Register, followed by a formal public hearing (with preparation of a complete hearing transcript.) Hybrid rule-making combines the best features of formal and informal rule-making. A proposed rule is published in the Federal Register, with an opportunity for public submission of written comments, and then an informal public hearing is held. With exempted rule-making, the agency decides whether public participation is allowed. Exempted rule-making 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.

7. Stages of Informal Rule-Making
Agency drafts rule in consultation with interested parties
Proposed rule published 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
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
With informal rule-making, the agency first drafts a rule in consultation with interested parties, and then publishes the proposed rule in the Federal Register. Interested parties can file written comments on the written draft within a thirty-day period from publication in the Federal Register. The final draft of the rule is then published in the Federal Register 30 days before it takes effect; a statement of its purpose and cost-benefit analysis must accompany its publication. The agency receives feedback from interested parties during the thirty-day period, and then makes a decision on whether the final draft should be rewritten; if not, it becomes law.

8. Administrative Procedures Act (APA) (Continued)
Interpretive Rules: Rules that do not create any new rights/duties; instead, a detailed statement of agency’s 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
Regulated Negotiation (“Reg-neg”): Mediated agreement (involving competing interest groups) on agency rule-making
Regarding the Administrative Procedures Act, “interpretive rules” are rules that do not create any new rights or duties; instead, they are detailed statements of the agency’s interpretation of existing law, and the steps a party must take to comply with existing law. “Policy statements” are general statements about agency rule-making or enforcement activities. Policy statements have no binding impact, and do not directly affect legal rights or responsibilities. Regulated Negotiation, or “reg-neg,” is a mediated agreement involving competing interest groups on agency rule-making.

9. Limitations on Agency Powers
Political
Statutory
Judicial
Informational
There are political, statutory, judicial, and informational limitations on an agency’s powers.

10. Freedom of Information Act (FOIA)
Requires that federal agencies publish in Federal Register places where public can access agency information
Any individual or business may make a FOIA request
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
Citizens entitled to any records government has about them
Exemptions:
National Security
Internal Agency Matters (Example: Personnel Issues)
Criminal Investigations
Financial Institutions
Individual’s Private Life
The Freedom of Information Act, or “FOIA,” requires that federal agencies publish in the Federal Register specific places where the public can access agency information. Any individual or business may make a Freedom of Information Act request. Information may be obtained regarding how an agency acquires and spends its money. Statistics and other information collected by an agency on particular topics are also available. Pursuant to the FOIA, citizens are entitled to any records the government has about them, although there are exceptions, including national security, internal agency matters (for example, personnel issues,) criminal investigations, financial institutions, and an individual’s private life.

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)
Such agencies must keep records of closed meetings
The “Government in Sunshine” Act requires that agency meetings be open to the public if the agency is headed by “collegiate body” (in other words, two or more persons, with the majority appointed by the president upon the “advice and consent” of the Senate.) Such agencies must keep records of any closed meetings.

12. Privacy Act
Federal agency may not disclose information about an individual to other agencies/organizations without that individual’s written consent
Under the Privacy Act, a federal agency may not disclose information about an individual to other agencies or organizations without the individual’s written consent.