This is a monitored discussion.
Pick an agency of your choice and research an agency rule that governs some form of prohibited activity and provide a brief explanation of the rule and how you feel it is applied.
- Your single Original Post shall address the question(s).
- Your Original Post to the questions below must be submitted by 11:59pm, Thursday.
- Your Original Post to the discussion questions must be at least 250-words using specific examples from the book or other resources to support your answers.
- Cite references according to APA requirements.
Assignment: Read Chapters 6 and 7.
Chapter 6: Agency Rule Making.
As you know, agencies implement their own rules and regulations to assist in administering their duties. When they implement rules/regulations, they are acting in their “quasi-judicial” role. As a rule maker, agencies typical divide rule making into two forms: procedural and substantive.
Procedural rule making is limited to rules/regulations that assist the agency is implementing and enforcing their power given to them by Congress. An example would be what rules/regulations are followed when an agency takes action, such as the denial of a license based upon qualifications. An example of a procedural rule would be the steps the agency must follow when denying a license because of qualifications.
Substantive rule making is the equivalent of a criminal statute. The substantive rule would likely address what act or inaction constitutes a violation of agency policy.
Rule making, both procedural and substantive, can be both formal and informal.
Formal rule making is not used as often as informal rule making since formal rule making must satisfy strict requirements of the Administrative Procedures Act (APA), giving notice and an opportunity to be heard prior to the rule becoming effective.
Informal rule making is the type of rule making most agencies are required to comply with unless the APA says otherwise. The greatest difference between formal and informal rule making is that informal rule making does not require a trial-type hearing before the rule is enacted.
However, both formal and informal rule making make it mandatory that the proposed rule/regulation must be published in the Federal Register (See Chapter 12). After publication in the Federal Register, if no objections are received, the rule becomes enacted. All published rules and regulations can be found in the Code of Federal Regulation or the Florida Administrative Code for the State of Florida. Florida’s version of the federal APA can be found in section 120, Florida Statutes (Florida Administrative Procedures Act).
Another type of rule making is called “Exempted Rule Making.” Usually seen in the military and in foreign affairs, no notice is given before the rule/regulation becomes effective.
Hybrid rule making is another form of rule making usually in the form of an executive order from the President.
Chapter 7: Agency Investigations and Information Collection.
Why would an administrative agency be in the business of investigations and information collection?
Many agencies are given the responsibility of protecting the public. Agencies like the FDA (Food and Drug Administration) are given the very important duty of making sure drugs are properly tested prior to being sold to the public. Because impact on the public could be very devastating if certain procedures are not followed, the FDA requires drug companies to keep detailed records about the drugs. Other businesses, such as ones that deal in dangerous equipment or products, are highly regulated as well. Gun manufacturers and toxic chemical manufacturers also have extensive rules for record keeping. Upon request, the administrative agency that regulates the industry can inspect, copy or demand the records without notice. Should the business fail to produce the record or not comply with the administrative agency rules regarding record keeping, the business is subject to fines and possible license revocation.
Administrative agencies also have the power to conduct investigations. Investigations take many forms, one of the most common being industry inspections. Administrative agencies such as the Occupational Safety and Health Administration (OSHA) frequently inspect industry under their control to insure compliance with applicable codes. Although Administrative searches differ from searches conducted by law enforcement agencies, the courts have imposed 4th Amendment Constitutional limitations on Administrative searches. For example, drug testing of employees, which is considered to be more invasive than an inspection of an industry, must comply with stricter standards, and in some cases, is completely barred by 4th Amendment protections due to the test being unreasonable.