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Administrative Law

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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 - PowerPoint PPT Presentation

Text of Administrative Law

  • Administrative LawThe Enactment of Rules and Regulations

  • Statutes and RegulationsLegislatures enact laws that may or may not be signed by the executive branchIf signed, these laws are known as statutes

    The law may direct an agency to develop rules that would govern a persons or companys actions under the lawThese rules are known as regulationsAgencies administer and execute lawsAgencies are known by different names such as boards, departments, bureaus, commissions, or divisions

  • Agency ActionsAgency action means an agency rule, order, sanction, or even an agencys failure to actEx parte communications are oral or written communications that are not included on the public record of the rule or caseFederal Administrative Procedure ActFAPA was created to define a federal agencys actions as they related to creating public rules and granting permits and licensesAgencies must make available to the public any information, orders, and procedures that would affect the publicThis 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 MakingRulemakings can be either formal or informal proceedingsFAPA requires publication of a Notice of Proposed Rulemaking, also known as an NPRM, in the Federal RegisterThe agency publishes the rule in final form, known as a Final Rule, also published in the Federal RegisterAn intermediate rule is known as an Interim Rule

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

  • ProceedingsHearings and Other MattersIf necessary an agency may hold hearings to discuss a proposed ruleInterested persons and parties affected by the rule may appear and give testimony and present evidenceAgency Decisions, Ex Parte Contacts and the RecordDuring a rulemaking procedure, the agency will create a Record of its decision for a Final RuleThe Record comprises all the various comments, testimony and exhibits presented to the agency concerning the matter

  • ProceedingsItems not in the Record cannot usually be scrutinized by a reviewing court in its review of the regulation or the agencys actions in promulgating the regulationThose items derived from the ex parte contact may be stricken from the RecordThis may result in the dismissal of the proponents petition or request for a rulemaking

  • PermitsPermitsAn agency may grant a person or company a permit to operate its facilityA 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 dischargedA violation of any of the discharge limits is a violation of the applicable statuteThese violations can carry significant fines

  • Permit ApplicationsA permit application must be submitted to the agencyThe permit application process may be governed by specific proceduresAfter review of the permit application, hearing testimony and other information, the agency may issue the permitThe permit applicant can appeal the agencys final permit determination

  • AdjudicationsAdjudicationan agency may also hold hearings to determine whether the rules have been violatedThese hearings are called administrative adjudicationsThe parties may be represented by attorneys and can obtain information from the other party by subpoenaAdditionally, 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 hearingAt the conclusion of the hearing, the agency will issue its decisionThis decision, testimony and information constitute the Record for the hearingAppeals from the agencys decision will refer to this Record

  • The Appellate ProcessAppealsAppeals from FAPA rulemaking or permit decisions are governed by 701 to 706These sections describe the type of actions that can be appealed and the permissible scope of reviewAdditionally, the statute under which an appeal is brought may also provide procedures for an appeal of an agencys action

  • Judicial ReviewScope of ReviewA reviewing court has limited discretion as to what type of agency actions can be reviewed or how it may review those actionsIf the agencys action was arbitrary and capricious, there may be significant reason for appealingArbitrary and capricious means that the agencys actions were not based upon the Record in the rulemaking or permit decisionOther reasons the court may give in setting aside the agencys decision include (i) the agencys acting beyond its statutory authority, (ii) its failure to abide by procedural requirements, or (iii) the decisions being found unwarranted by the facts in the rulemaking or permit decision

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