Administrative Law

Administrative Law The Enactment of Rules and Regulations

Statutes and Regulations • Legislatures enact laws that may or may not be signed by the executive branch • If signed, these laws are known as statutes • The law may direct an agency to develop rules that would govern a person’s or company’s actions under the law • These rules are known as regulations • Agencies administer and execute laws • Agencies are known by different names such as boards, departments, bureaus, commissions, or divisions

Agency Actions • Agency action means an agency rule, order, sanction, or even an agency’s failure to act • Ex parte communications are oral or written communications that are not included on the public record of the rule or case • Federal Administrative Procedure Act • FAPA was created to define a federal agency’s actions as they related to creating public rules and granting permits and licenses • Agencies must make available to the public any information, orders, and procedures that would affect the public • This means that essentially all agency files and documents except those exempted from disclosure must be released to the public if requested- Public Information – § 552 – FOIA

Rule Making • Rulemakings can be either formal or informal proceedings • FAPA requires publication of a Notice of Proposed Rulemaking, also known as an NPRM, in the Federal Register • The agency publishes the rule in final form, known as a Final Rule, also published in the Federal Register • An intermediate rule is known as an Interim Rule

Code of Federal Regulations & The Federal Register • Code of Federal Regulations • The Code of Federal Regulations, or CFR, is an annual compilation of federal rules • Federal Register • The Federal Register, also known as the FR, is a daily journal of federal agencies • The FR is published Monday through Friday, except for legal holidays • Many states have similar journals or registers and administrative code compilations

Proceedings • Hearings and Other Matters • If necessary an agency may hold hearings to discuss a proposed rule • Interested persons and parties affected by the rule may appear and give testimony and present evidence • Agency Decisions, Ex Parte Contacts and the Record • During a rulemaking procedure, the agency will create a Record of its decision for a Final Rule • The Record comprises all the various comments, testimony and exhibits presented to the agency concerning the matter

Proceedings • Items not in the Record cannot usually be scrutinized by a reviewing court in its review of the regulation or the agency’s actions in promulgating the regulation • Those items derived from the ex parte contact may be stricken from the Record • This may result in the dismissal of the proponent’s petition or request for a rulemaking

Permits • Permits • An agency may grant a person or company a permit to operate its facility • A typical permit to discharge into waters and streams is governed by the National Pollution Discharge Elimination System (NPDES) under the Clean Water Act (CWA) • Permits may contain specific limitations on the types and amounts of pollutants that may be discharged • A violation of any of the discharge limits is a violation of the applicable statute • These violations can carry significant fines

Permit Applications • A permit application must be submitted to the agency • The permit application process may be governed by specific procedures • After review of the permit application, hearing testimony and other information, the agency may issue the permit • The permit applicant can appeal the agency’s final permit determination

Adjudications • Adjudication • an agency may also hold hearings to determine whether the rules have been violated • These hearings are called administrative adjudications • The parties may be represented by attorneys and can obtain information from the other party by subpoena • Additionally, the parties may present information and evidence on their behalf, conduct depositions and questioning of witnesses, and make appropriate motions during the course of the hearing • At the conclusion of the hearing, the agency will issue its decision • This decision, testimony and information constitute the Record for the hearing • Appeals from the agency’s decision will refer to this Record

The Appellate Process • Appeals • Appeals from FAPA rulemaking or permit decisions are governed by §§ 701 to 706 • These sections describe the type of actions that can be appealed and the permissible scope of review • Additionally, the statute under which an appeal is brought may also provide procedures for an appeal of an agency’s action

Judicial Review • Scope of Review • A reviewing court has limited discretion as to what type of agency actions can be reviewed or how it may review those actions • If the agency’s action was “arbitrary and capricious,” there may be significant reason for appealing • Arbitrary and capricious means that the agency’s actions were not based upon the Record in the rulemaking or permit decision • Other reasons the court may give in setting aside the agency’s decision include (i) the agency’s acting beyond its statutory authority, (ii) its failure to abide by procedural requirements, or (iii) the decision’s being found unwarranted by the facts in the rulemaking or permit decision

Administrative Law