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Chapter 3 - Administrative law. After reading this chapter, you will be able to answer the following questions: What is administrative law? What is an administrative agency? What types of powers do administrative agencies have? How and why are administrative agencies created? What is the difference between an executive agency and an independent agency? What is the Administrative Procedures Act?...
Chapter Administrative Law McGrawHill/Irwin Copyright © 2013 by The McGrawHill Companies, Inc. All rights reserved Introduction to Administrative Law • Administrative Law: Consists of substantive and procedural rules created by administrative agencies • Administrative Agency: Any governmental body of the city, county, state or federal government -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 32 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 Consumer Product Safety Commission (CPSC) and Equal Employment Opportunity Commission (EEOC) • Hybrid Agency: Characteristics of an executive and independent agency -Example: Environmental Protection Agency (EPA) 33 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 34 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 costbenefit 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 35 Administrative Procedures Act (APA) (Continued) • Interpretive Rules: Rules that 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; not directly affect legal rights/responsibilities • Regulated Negotiation (“Reg-neg”): Mediated agreement (involving competing interest groups) on agency rulemaking 36 Limitations on Agency Powers • Political • Statutory • Judicial • Informational 37 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 38 Freedom of Information Act (FOIA) (Continued) • Statistics and other information collected by agency on particular topics 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 39 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 310 Privacy Act Federal agency may not disclose information about an individual to other agencies/organizations without that individual’s written consent 311 ...Introduction to Administrative Law • Administrative Law: Consists of substantive and procedural rules created by administrative agencies • Administrative Agency: Any governmental body of the city,... Protection Agency (EPA) 33 Administrative Procedures Act (APA) Imposes specific guidelines on agency rule-making: • Informal Rule-Making (“Notice-and-Comment” Rule-Making): Proposed rule published... records government has about them • Exemptions: -National Security -Internal Agency Matters (Example: Personnel Issues) -Criminal Investigations -Financial Institutions -Individual’s private life