CAS Bar Administrative and Regulatory Law 2 — Questions and Answers
Question 1: Under the federal APA, which type of rulemaking requires the agency to hold a formal hearing on the record before issuing a rule?
- Informal notice-and-comment rulemaking
- Formal rulemaking triggered by statute (Correct answer)
- Negotiated rulemaking
- Direct final rulemaking
Correct answer: Formal rulemaking triggered by statute
Formal rulemaking under the APA is required only when a statute mandates that rules be made 'on the record after opportunity for an agency hearing.'
Question 2: Under California's Administrative Procedure Act, an 'underground regulation' is best described as:
- A rule adopted through informal guidance rather than the OAL rulemaking process (Correct answer)
- Any regulation that applies only to a single private party
- A classified regulation exempt from public disclosure
- A federal preemption rule that supersedes state regulations
Correct answer: A rule adopted through informal guidance rather than the OAL rulemaking process
California treats as void any agency rule that meets the definition of 'regulation' but was not adopted through the Office of Administrative Law process.
Question 3: The non-delegation doctrine primarily limits Congress's ability to:
- Create independent regulatory agencies
- Delegate legislative power to agencies without an intelligible principle (Correct answer)
- Delegate power to state governments
- Delegate adjudicatory functions to Article I courts
Correct answer: Delegate legislative power to agencies without an intelligible principle
Under the non-delegation doctrine, Congress may delegate rulemaking authority only if it provides an 'intelligible principle' to guide agency discretion.
Question 4: When a California state agency fails to respond to a petition for rulemaking, the proper remedy for an aggrieved party is to:
- File a writ of mandate in superior court to compel the agency to initiate rulemaking (Correct answer)
- File a notice of appeal directly with the Court of Appeal
- Submit the petition to the Governor's office for executive review
- Seek relief through the Office of Administrative Hearings
Correct answer: File a writ of mandate in superior court to compel the agency to initiate rulemaking
A petitioner may seek a writ of mandate under California Code of Civil Procedure §1085 to compel a ministerial duty when the agency unreasonably refuses to act on a rulemaking petition.
Question 5: An agency issues a rule interpreting a statute it administers. Under the Skidmore standard, a court gives the agency's interpretation weight based on:
- Whether the agency head personally approved the interpretation
- The thoroughness, validity of reasoning, and consistency of the agency's position (Correct answer)
- Whether the rule was adopted through formal notice-and-comment
- The number of years the agency has been in existence
Correct answer: The thoroughness, validity of reasoning, and consistency of the agency's position
Skidmore deference is based on the persuasive power of the agency's reasoning, including its thoroughness, consistency, and the validity of its logic.
Question 6: A party challenging an administrative agency's final order must first exhaust administrative remedies because:
- Courts lack subject-matter jurisdiction over administrative matters entirely
- Exhaustion allows the agency to correct its own errors and develop a complete record (Correct answer)
- Federal statutes bar all judicial review until all appeals are heard
- The doctrine of primary jurisdiction requires agency expertise to be dispositive
Correct answer: Exhaustion allows the agency to correct its own errors and develop a complete record
Exhaustion of administrative remedies conserves judicial resources and gives agencies the opportunity to correct mistakes before courts intervene.
Question 7: Under the federal APA §553, which of the following is generally EXEMPT from notice-and-comment rulemaking requirements?
- Rules affecting individual rights and obligations
- Interpretive rules and general statements of policy (Correct answer)
- Rules with a substantial economic impact on small businesses
- Final rules that reverse prior agency positions
Correct answer: Interpretive rules and general statements of policy
APA §553(b)(A) exempts interpretive rules and general statements of policy from notice-and-comment requirements, though some courts require notice for major interpretive shifts.
CAS Bar Administrative and Regulatory Law 2
Under the federal APA, which type of rulemaking requires the agency to hold a formal hearing on the record before issuing a rule?