administrative law the enactment of rules and regulations
TRANSCRIPT
Administrative LawAdministrative Law
The Enactment of Rules and The Enactment of Rules and Regulations Regulations
Statutes and RegulationsStatutes and Regulations
Legislatures enact laws that may or may Legislatures enact laws that may or may not be signed by the executive branchnot be signed by the executive branch
If signed, these laws are known as statutesIf signed, these laws are known as statutes
The law may direct an agency to develop The law may direct an agency to develop rules that would govern a person’s or rules that would govern a person’s or company’s actions under the lawcompany’s actions under the law
These rules are known as regulationsThese rules are known as regulations Agencies administer and execute lawsAgencies administer and execute laws
Agencies are known by different names such as boards, Agencies are known by different names such as boards, departments, bureaus, commissions, or divisionsdepartments, bureaus, commissions, or divisions
Agency ActionsAgency Actions
Agency action means an agency rule, order, Agency action means an agency rule, order, sanction, or even an agency’s failure to actsanction, or even an agency’s failure to act Ex parteEx parte communications are oral or written communications are oral or written
communications that are not included on the public record communications that are not included on the public record of the rule or caseof the rule or case
Federal Administrative Procedure ActFederal Administrative Procedure Act FAPA was created to define a federal agency’s actions as FAPA was created to define a federal agency’s actions as
they related to creating public rules and granting permits they related to creating public rules and granting permits and licensesand licenses
Agencies must make available to the public any information, Agencies must make available to the public any information, orders, and procedures that would affect the publicorders, and procedures that would affect the public
This means that essentially all agency files and documents This means that essentially all agency files and documents except those exempted from disclosure must be released to the except those exempted from disclosure must be released to the public if requested- Public Information – § 552 – FOIApublic if requested- Public Information – § 552 – FOIA
Rule MakingRule Making Rulemakings can be either formal or Rulemakings can be either formal or
informal proceedingsinformal proceedings FAPA requires publication of a Notice of FAPA requires publication of a Notice of
Proposed Rulemaking, also known as an Proposed Rulemaking, also known as an NPRM, in the NPRM, in the Federal RegisterFederal Register
The agency publishes the rule in final The agency publishes the rule in final form, known as a Final Rule, also form, known as a Final Rule, also published in the published in the Federal RegisterFederal Register
An intermediate rule is known as an An intermediate rule is known as an Interim RuleInterim Rule
Code of Federal Regulations & Code of Federal Regulations & The Federal RegisterThe Federal Register
Code of Federal RegulationsCode of Federal Regulations The The Code of Federal RegulationsCode of Federal Regulations, or , or CFRCFR, is an , is an
annual compilation of federal rulesannual compilation of federal rules Federal RegisterFederal Register
The The Federal RegisterFederal Register, also known as the , also known as the FRFR, is , is a daily journal of federal agenciesa daily journal of federal agencies
The The FRFR is published Monday through Friday, is published Monday through Friday, except for legal holidaysexcept for legal holidays
Many states have similar journals or Many states have similar journals or registers and administrative code registers and administrative code compilationscompilations
ProceedingsProceedings Hearings and Other MattersHearings and Other Matters
If necessary an agency may hold hearings to If necessary an agency may hold hearings to discuss a proposed rulediscuss a proposed rule
Interested persons and parties affected by the Interested persons and parties affected by the rule may appear and give testimony and present rule may appear and give testimony and present evidenceevidence
Agency Decisions, Ex Parte Contacts and Agency Decisions, Ex Parte Contacts and the Recordthe Record During a rulemaking procedure, the agency will During a rulemaking procedure, the agency will
create a Record of its decision for a Final Rulecreate a Record of its decision for a Final Rule The Record comprises all the various comments, The Record comprises all the various comments,
testimony and exhibits presented to the agency testimony and exhibits presented to the agency concerning the matterconcerning the matter
ProceedingsProceedings Items not in the Record cannot Items not in the Record cannot
usually be scrutinized by a reviewing usually be scrutinized by a reviewing court in its review of the regulation court in its review of the regulation or the agency’s actions in or the agency’s actions in promulgating the regulationpromulgating the regulation Those items derived from the Those items derived from the ex parteex parte
contact may be stricken from the Recordcontact may be stricken from the Record This may result in the dismissal of the This may result in the dismissal of the
proponent’s petition or request for a proponent’s petition or request for a rulemakingrulemaking
PermitsPermits PermitsPermits
An agency may grant a person or company a An agency may grant a person or company a permit to operate its facilitypermit to operate its facility
A typical permit to discharge into waters and A typical permit to discharge into waters and streams is governed by the National Pollution streams is governed by the National Pollution Discharge Elimination System (NPDES) under Discharge Elimination System (NPDES) under the Clean Water Act (CWA)the Clean Water Act (CWA)
Permits may contain specific limitations on the Permits may contain specific limitations on the types and amounts of pollutants that may be types and amounts of pollutants that may be dischargeddischarged
A violation of any of the discharge limits is a A violation of any of the discharge limits is a violation of the applicable statuteviolation of the applicable statute
These violations can carry significant finesThese violations can carry significant fines
Permit ApplicationsPermit Applications
A permit application must be A permit application must be submitted to the agencysubmitted to the agency
The permit application process may be The permit application process may be governed by specific proceduresgoverned by specific procedures
After review of the permit application, After review of the permit application, hearing testimony and other hearing testimony and other information, the agency may issue the information, the agency may issue the permitpermit
The permit applicant can appeal the The permit applicant can appeal the agency’s final permit determinationagency’s final permit determination
AdjudicationsAdjudications AdjudicationAdjudication
an agency may also hold hearings to determine whether the an agency may also hold hearings to determine whether the rules have been violatedrules have been violated
These hearings are called administrative adjudicationsThese hearings are called administrative adjudications The parties may be represented by attorneys and The parties may be represented by attorneys and
can obtain information from the other party by can obtain information from the other party by subpoenasubpoena
Additionally, the parties may present information and evidence Additionally, the parties may present information and evidence on their behalf, conduct depositions and questioning of on their behalf, conduct depositions and questioning of witnesses, and make appropriate motions during the course of witnesses, and make appropriate motions during the course of the hearingthe hearing
At the conclusion of the hearing, the agency will issue its At the conclusion of the hearing, the agency will issue its decisiondecision
This decision, testimony and information constitute the Record This decision, testimony and information constitute the Record for the hearingfor the hearing
Appeals from the agency’s decision will refer to this RecordAppeals from the agency’s decision will refer to this Record
The Appellate ProcessThe Appellate Process AppealsAppeals
Appeals from FAPA rulemaking or permit Appeals from FAPA rulemaking or permit decisions are governed by §§ 701 to 706decisions are governed by §§ 701 to 706
These sections describe the type of actions These sections describe the type of actions that can be appealed and the permissible that can be appealed and the permissible scope of reviewscope of review
Additionally, the statute under which an Additionally, the statute under which an appeal is brought may also provide appeal is brought may also provide procedures for an appeal of an agency’s procedures for an appeal of an agency’s actionaction
Judicial ReviewJudicial Review Scope of ReviewScope of Review
A reviewing court has limited discretion as to what type A reviewing court has limited discretion as to what type of agency actions can be reviewed or how it may review of agency actions can be reviewed or how it may review those actionsthose actions
If the agency’s action was “arbitrary and capricious,” If the agency’s action was “arbitrary and capricious,” there may be significant reason for appealingthere may be significant reason for appealing
Arbitrary and capricious means that the agency’s Arbitrary and capricious means that the agency’s actions were not based upon the Record in the actions were not based upon the Record in the rulemaking or permit decisionrulemaking or permit decision
Other reasons the court may give in setting aside the Other reasons the court may give in setting aside the agency’s decision include (i) the agency’s acting beyond agency’s decision include (i) the agency’s acting beyond its statutory authority, (ii) its failure to abide by its statutory authority, (ii) its failure to abide by procedural requirements, or (iii) the decision’s being procedural requirements, or (iii) the decision’s being found unwarranted by the facts in the rulemaking or found unwarranted by the facts in the rulemaking or permit decisionpermit decision