Chapter 44
Administrative Law
McGraw-Hill/Irwin
Copyright © 2012 by The McGraw-Hill Companies, Inc. All rights reserved.
Introduction to Administrative Law
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Administrative Law: Consists of substantive and procedural rules created by
administrative agencies
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Administrative Agency: Any body created by the legislative branch
(Congress) to carry out specific duties
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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
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Types of Administrative Agencies
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Executive Agency: Generally within executive branch of government, under a
“cabinet-level” department; also referred to as “cabinet-level” agency
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Independent Agency: Governed by board of commissioners appointed by president,
with “advice and consent” of U.S. Senate
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Examples include Federal Aviation Agency (FAA) and Food and Drug
Administration (FDA)
Examples include Federal Trade Commission (FTC) and Securities and Exchange
Commission (SEC)
Hybrid Agency: Characteristics of an executive and independent agency
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Example: Environmental Protection Agency (EPA)
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Exhibit 44-1: Major Administrative Agencies
Independent Agencies
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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)
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Exhibit 44-1: Major Administrative Agencies
(Continued)
Executive Agencies
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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)
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Administrative Procedures Act (APA)
Imposes specific guidelines on agency rule-making:
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Informal Rule-Making (“Notice-and-Comment” Rule-Making): Proposed
rule published in Federal Register, with opportunity for public comment
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Formal Rule-Making: Publication of proposed rule in Federal Register, then
formal public hearing (including complete transcript)
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Hybrid Rule-Making: Combines best features of formal and informal rulemaking; proposed rule published in Federal Register, with opportunity for
public submission of written comments, then informal public hearing
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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
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Stages of Informal Rule-Making
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Agency drafts rule in consultation with interested parties
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Proposed rule published in Federal Register
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Interested parties can file written comments on written draft within 30-day
period from publication in Federal Register
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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
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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
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Administrative Procedures Act (APA) (Continued)
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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
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Policy Statements: General statements about directions of agency regarding
rule-making or enforcement activities; no binding impact; do not directly
affect legal rights/responsibilities
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Regulated Negotiation (“Reg-neg”): Mediated agreement (involving
competing interest groups) on agency rule-making
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Limitations on Agency Powers
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Political
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Statutory
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Judicial
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Informational
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Freedom of Information Act (FOIA)
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Requires that federal agencies publish in Federal Register places where public can
access agency information
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Any individual or business may make a FOIA request
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Information may be obtained regarding how agency acquires and spends its money
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Statistics and/or information collected by agency on a particular topic is available
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Citizens entitled to any records government has about them
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Exemptions:
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National Security
Internal Agency Matters (Example: Personnel Issues)
Criminal Investigations
Financial Institutions
Individual’s Private Life
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Government in Sunshine Act
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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)
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Such agencies must keep records of closed meetings
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Privacy Act
Federal agency may not disclose information
about an individual to other
agencies/organizations without that
individual’s written consent
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