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ADMINISTRATIVE LAWMAKING

Administrative agencies engage in lawmaking through rulemaking and through the adjudication of cases and controversies arising under their jurisdiction. They pursue both civil remedies and criminal sanctions to promote compliance with regulatory and administrative laws (Feldman, 2016). Administrative lawmaking plays an increasingly important role in modern society, and its consequences are felt in all walks of life, as Chapter 3 emphasized. This section further discusses the fundamental processes involved in administrative lawmaking.

ADMINISTRATIVE RULEMAKING

Administrative rulemaking is the single most important function carried out by a government agency. While the president and Congress provide a general framework for the government’s tasks, administrative rulemaking provides the specifics that define the law and delineate how administrative agencies implement their responsibilities. Through rulemaking, a particular administrative agency legislates a policy Under the requirements of the Federal Administrative Procedure Act, general notice of proposed rulemaking must be published in the Federal Register (the daily compendium of new, revised, and proposed rules). The notice must specify the location of the proceedings, the legal authority under which the rules are being proposed, and the substance of the proposed rules. After such a notice is given, interested parties are to be provided with the opportunity to participate in the rulemaking proceedings through the presentation of written data. At the discretion of the agency, oral presentation may be made. Unless the statutes governing the agency’s operation require a notice or a hearing, notice of rulemaking can be withheld if the agency considers it to be impractical, unnecessary, or contrary to the public interest.

The flexibility of agencies in rulemaking procedures is much greater than in administrative adjudication. Formal hearings are not held unless required by statute. Administrators are free to consult informally with interested parties and are not bound by the more rigid requirements of adjudicative hearings. The number of parties that may participate is also potentially far greater than in adjudicative proceedings, where only those directly affected by an administrative order have standing (that is, are directly involved in litigation).

The bulk of the immense code of federal regulations consists of the substantive rules of administrative agencies. The Internal Revenue Code, for example, is part of this compendium of regulations, which consists of a seemingly endless number of rules interpreting Congressional statutes. At this point, it should be noted that administrative agencies issue a variety of pronouncements less formal and binding than their “legislative” regulations, which are designed to clarify the laws they are administering (Beermann,

2006). Some of these pronouncements represent “interpretative regulations.” For example, the Internal Revenue Service regularly issues interpretations of the Internal Revenue Code, such as under what circumstances a college professor may claim a home office as a business expense. Moreover, in response to inquiries, agencies sometimes issue advisory rulings, which interpret the law with reference to particular types of situations. In addition, some agencies also publish instructions, guides, explanatory pamphlets, and other explanatory materials.

Some examples will illustrate the kinds of lawmaking that administrative agencies create through rulemaking:

  • The U.S. Food and Drug Administration determines policies governing the labeling, availability, shelf life, and safety of drugs.
  • The U.S. Department of Transportation issues rules on what airlines should do about schedule changes; flight cancellations; long delays; and compensation for missed flights, lost luggage, getting bumped from flights, and many other matters.
  • The U.S. Department of Commerce issues rules on banking practices and countless other aspects of interstate commerce.
 
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