THE REGULATORY PROCESS Chapter 15

The rise of the administration bodies probably has been the most significant legal trend of the last century and perhaps more values today are affected by their decisions than by those of all the courts . . . .They have become a veritable fourth branch of the government. . . . Supreme Court in F.T.C. v. Ruberoid Company (1952)

The Rise of Administrative Agencies

The first federal agency: The Interstate Commerce Commission (ICC,1887)
Early 1900s: The Federal Trade Commission (FTC) and the Food and Drug Administration (FDA)

1930s: Securities & Exchange Commission (SEC) and Federal Communications Commission (FCC)
1960s & 1970s: Environmental Protection Agency (EPA), Equal Employment Opportunity Commission (EEOC), and Occupational Safety & Health Administration (OSHA) Agencies: Tools for local, state & federal regulatory functions

Creating An Administrative Agency

Congress gives an agency power & authority through legislative delegation Congress delegates power to the agency to perform the regulatory purpose Congressional statute delegates powers an enabling statute Agencies are created to have expertise and supervision over special problems about which Congress is concerned If voters unhappy with regulations, the can pressure representatives in Congress to make changes

Administrative Law
Administrative law consists of legal rules that define authority & structure of an agency Sources include Enabling statutes of administrative agencies Administrative Procedures Act (APA, 1946) Rules issued by administrative agencies Court decisions Review validity of agency actions The structure of administrative law created by the APA An agency must abide by APA requirements Congress may impose different requirements than APA

ADMINISTRATIVE REGULATORY POWERS

Legislative (or Rulemaking) Investigative Adjudicatory Enforcement Part of the powers of all three branches of government are incorporated into an agency
See Exhibit 15.2

Rule Making
Formal rules and regulations Informal policy guidance documents

Substantive or Legislative
Same force as statutes of Congress Agency usually must give public notice of these rules so parties have opportunity for written comment

Interpretative
Issued by an agency to give guidance regarding interpretation of a substantive rule or statute May be created without public notice

Procedural
Rules outline the method of agency operation Procedures for enforcement, investigation & adjudicatory review

Rulemaking Procedure
Proposed rule drafted by the agency staff Internal review of proposed rule Rules approved by the head of the agency for public consideration Publishing of the proposed rules in the Federal Register Interested parties may submit written comments to agency After public comment period (60-90 days), agency reviews comments and finalizes the rule Some statutes require rulemaking must be on the record. Agency must hold hearings for witnesses to testify about proposed rule. Once agency issues final rule, it may be appealed through agency, then to the U.S. Court of Appeals Courts uphold rules if reasonable given language of authorizing statute

Chevron, USA v. Natural Resources Defense Council

The Clean Air Act requires states with nonattainment (dirty air) areas to create permit program Program regulates new or modified major stationary sources of air pollution EPA regs. state a plant with multiple sources of pollution are treated as one source of pollution The Bubble Concept as if multiple sources are under bubble The whole bubble is measured (rather than each source) National Resources Defense Council (NRDC) challenged EPAs Bubble Rule Said rule was inconsistent with Clean Air Act Court of Appeals overturned the EPA regulation Decision was appealed Continued

Chevron, USA v. Natural Resources Defense Council, cont.

HELD: Reversed. Regulation is appropriate. Two questions asked:
1. Has Congress directly spoken to the precise question at issue? 2. If statute is silent or ambiguous re: an issue, was the agencys answer based on permissible construction of the statute?

Agencies allowed to fill gaps left by Congress Unless agency decisions are arbitrary, capricious or manifestly contrary to statute, regulations given controlling weight Legislative delegation may be implicit or explicit often implicit Court usually defers to administrative interpretations Question is not whether the bubble concept is inappropriate Question is if Administrators view is appropriate and reasonable regarding the Bubble Program EPAs use of the concept is reasonable policy for it to make.

Enforcing Rules
Gathering information and investigating violations Broad investigative powers of agencies by: Monitoring and self reporting by business Business is concerned with 5th Amendment violations re: self incrimination Direct observation by agency See Dow Chemical v. U.S. (within text) Agency obtains information through subpoena power Directs person receiving subpoena to appear and testify or to produce documents

General Principles of 4th Amendment Search & Seizure Guidelines of Administrative Agencies
Need Warrant Routine inspections No Warrant Open field observation No Warrant Consent by management for agency to look over or search the premises No Warrant Closely regulated industries, i.e. Pharmaceuticals industry Nuclear facility Even junk yards (if protection of evidence needed)

Enforcement Power
Agencies have array of enforcement tools in civil and criminal penalties, plus the use of injunctions Possible sanctions: Prohibitions, requirements, limitations Withholding of relief; penalties & fines Destruction, taking, seizing, withholding of property Assessment of damages, reimbursements, restitution, compensation, costs, charges or fees Requirement, revocation, suspension of license Informal procedures (i.e. tests, inspections, permits, negotiations, advice, settlements) Formal procedures (i.e. adjudicatory hearings that may lead to litigation)

Adjudicatory Hearing
Formal agency process under APA rules Similar to those followed in a trial Business must respond to complaint that alleges violation of agency regulation Administrative Law Judge (ALJ) presides ALJ is a civil service employee who is usually an attorney Witnesses may be cross examined Less formal than a court trial Hearing must meet due process guarantees of the Constitution There is no right to trial by jury

Judicial Review
APA sets out procedural requirements for court review Jurisdiction is needed by the court to hear the case Action must be reviewable by the courts (review may be prohibited by statute, i.e. VA actions regarding benefits for veterans, dependents or survivors) Party must have standing to seek court review of an agency action See Lujan v. Defenders of Wildlife (within text) The agency action must be final to warrant judicial review under the ripeness doctrine Parties must complete all agency appeals before turning to the courts under the exhaustion doctrine

Lujan v. Defenders of Wildlife Legal Standing

Environmental groups argued that U.S. should stop providing aid to Egypt to build dams on Nile River. Building of dams endangers the rare Nile crocodile. Groups asserted providing aid should comply with U.S. Endangered Species Act. Court held: Plaintiffs lacked standing and have suffered no injury in fact. Concern about crocodiles in Egypt is too remote. Disagreement with agency policy is not = to an injury.

Reviewability
Review of substantive determination Courts usually yield to agencys judgment unless decisions are arbitrary, capricious, or an abuse of discretion or rulemaking is vague or unduly burdensome on business Review prohibited by Statute Congress may specify in the statute which court has jurisdiction for review Can prohibit certain judicial review Review of statutory interpretation Courts determine if the agency has gone beyond Congressional authority Review of procedural requirements Courts ensure an agency has not acted unfairly or disregarded procedures (has not violated procedural fair play)

CONTROLS ON AGENCY POWERS

Direct Controls Congressional budget process Agency Appropriations & Reporting Requirements Cost-Benefit and Risk Analysis
Example: Office of Management and Budget may send proposed regulation back to agency if scientific, technical and economic information standards are not met

Presidential Executive Orders instructing tasks to be undertaken by agencies

Example: Pres. Johnsons order to agencies re: affirmative action programs

Indirect Controls Freedom of Information Act Privacy Act Government in the Sunshine Act