THE REGULATORY PROCESS Chapter 15

1. 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)

2. 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

3. 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 anenabling 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

4. 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 Law

5. 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

6. 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

7. 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

8. 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 EPA’s “Bubble Rule” • Said rule was inconsistent with Clean Air Act • Court of Appeals overturned the EPA regulation • Decision was appealed Continued

9. 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 agency’s 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 Administrator’s view is appropriate and reasonable regarding the Bubble Program • EPA’s use of the concept is reasonable policy for it to make.

10. 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

11. 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)

12. 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) Enforcement Power

13. 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

14. 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

15. 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.

16. Reviewability • Review of substantive determination • Courts usually yield to agency’s 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”)

17. 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. Johnson’s order to agencies re: affirmative action programs Indirect Controls Freedom of Information Act Privacy Act Government in the Sunshine Act CONTROLS ON AGENCY POWERS