Chapter 5 Blw302

A federal, state, or local government unit established to perform a specific function. Administrative agencies are created and authorized by legislative bodies to administer and enforce specific laws.

Sets up basic law, purpose, penalties
Sets up administrative agencies to handle the enforcement

1. Department of the interior
2. SEC
3. NASA
4. Department of Homeland Security
5. Veterans Administration

Regulation of Professionals

-Specialization
-Due process
-Protect Small Interests and Small Business
-Achieve Social Goals
-Faster Relief

Specialists in their particular areas of law, agencies need this type of expertise because both the laws they enforce and the areas they regulate are complex.

Needed to deal with complexities of legislation

Agencies can hire the necessary expertise
-ie. Environmental, occupational safety, securities - regulation in these areas requires special expertise

Administrative agencies provide the opportunity to be heard, a form of due process before property, rights, or income are taken.

Often, social goals are usually delayed or debated. Agencies are created in response to a pressing social issue

Ie. Environmental protective agency; department of labor; department of homeland security

An individual or competitor might not take the time or effort to bring a private suit to collect damages. Gives small business competitors and consumers the protection and rights they might not otherwise have. Agency enforces rather than individual

ie. Corrective advertising, consumer complaints

If enforcement of all government regulations depended on court hearings, courts would be backlogged and the goals of swift action and enforcement defeated.

Administrative agencies help expedite investigations and enforcement and penalties for violations. In addition, administrative agencies serve as review boards for granting licenses.

Requires agencies to follow certain uniform procedures in promulgating rules

Other acts have separate names but are amendments to the APA

The APA includes: FOIA, Federal Privacy Act, Government in the Sunshine Act

Purpose is to allow public access to agency records
Types of information required to be published:
-Location of offices
-Names of responsible individuals
-Rules and regulations
-Reports
-Policy statements

Challenged Cases = Reverse FOIA Suit = Seeks to Prevent Disclosure

Types of Info not published: hearing orders, non-published interpretations, personnel policies and procedures

Any citizen may make one to any federal gov. agency--a written request that the agency furnish whatever information it has on the subject specified

-Request must be written
-Must describe the information and/or documents sought
-Agency can charge for time and copy costs
-Not required to say Why information is requested

Prohibits federal agencies from communicating records to another agency or person without first obtaining that person's consent. (Exemptions from disclosure) Intended to cut down on the pervasive and casual exchange of information about individuals between and among agencies

ie. trade secrets, banking audits, records of investigations, personnel and medical files, geological information on well sites, inter/intra-agency memos, internal personnel rules of the agency

Law enforcement agencies are exempt from the FPA.

-requires certain administrative agency meetings to be open to the public and that public be given notice in advance
-national defense, discussions about adjudication cases, or administrative agency's discussions on pending lawsuits

NOT A PART OF THE "APA"

Created the Federal Register System:
-Oversees publication of federal agency information. Provides the means for Sunshine Act notices and publication of agency rules and procedures

-U.S. Government Manual
-Code of Federal Regulations
-Federal Register

Reprinted each year and lists all Location of agencies/organizational charts/statistics on employees

Contains all of the regulations of all federal agencies

Provides a daily update, on changes in the regulations.

Contains proposed regulations, notices of meetings, notices of hearings on proposed regulations, FOIA requests, and the final versions of amended or new regulations.

Totals about 70,000 pages a year (250pages every working day)

Federal law requiring federal agencies to consider the effects of their regulatory actions on small businesses and other small entities and to minimize any undue disproportionate burden.

Requires publication of proposed rulemaking in trade publications

Promulgating Regulations (to declare a new statutory as in effect)
Enforcing rules
Adjudicating rules

1. Congress passes Enabling Act
2. Agency Study and Research of Need for Regulation
3. Proposed Regulations Published in Federal Register
4. Public Comment Period
5. Hearings Held Regionally
6. Modification of Proposed Regulation
7. Public Comment Period on Modification
8. Either: Withdrawal of Proposed Regulation OR Rule is Promulgated
9. Court Challenges

Gives the agency the broad power to deal with the issues that act was passed to address

Legislators begin the administrative process by passing a law to remedy a problem. The enacted law gives the overview-what the legislature wants to accomplish and what the penalties are for its violation. The law may also create an administrative agency with the power to adopt rules to enforce the statute. The law, referred to as "enabling act"

Agencies must establish a purpose for any new rules proposed and present evidence that the regulation will accomplish the purpose. The study focuses on whether the problems the regulation is trying to correct will be corrected as well as the costs if those problems are not corrected.

Based on the completed study, the agency will publish its proposed rules or rule changes in the "Federal Register." An agency is required under the "REGULATORY FLEXIBILITY ACT" to publish a notice in trade and industry publications of those businesses that will be affected by the rule.

The time during which the agency accepts comments on the proposed rule. Under the APA, the public comment period cannot be fewer than 30 days, but most comment periods are much longer.

Some agencies hold pubic hearings on proposed regulations to get input on the proposals and consider additional evidence and factors relevant in promulgating the final version of the rule.

After comment period is over, the agency can:
1. Simply adopt the rules
2. Modify the proposed rules and go through the process of public comment again
OR
3. Withdraw the rule

First ground: The administrative rule can be challenged as arbitrary, capricious, an abuse of discretion, or in violation of some other law. The agency must be able to show that there is evidence to support the proposed rule. Without such evidence, a court can find that the rule is ARBITRARY AND CAPRICIOUS.

Second ground: The agency did not comply with the APA requirements of notice, publication, and public comment or input. Another basis for challenging a regulation is that the regulation is unconstitutional.

Third ground: Claiming that the regulation is "ultra vires." Most agencies stay clearly within their authority, but an agency that tries to change the substance and purpose of the enabling act through regulation would be engaged in "ultra vires" activity.

A Latin term meaning "beyond the powers"; in corporate law, acts of a corporation that are beyond its express and implied powers to undertake.

The same as that for formal rulemaking, with the exception that NO PUBLIC HEARINGS ARE HELD ON THE RULE. Only input from the public comes in the form of comments, using same procedures as formal rulemaking.

1. Non-prosecuting: Regulation; Licensing; Inspections
2. Prosecution
3. Hearings
4. Consent Decrees
5. Penalties and Sanctions
6. Appeal of Agency Action

All enforcement action begins when the agency issues a COMPLAINT against the violating party. The complaint describes when and what the company did and why it is a violation

A court order that prohibits specifically described conduct

Formal agreements on remedies among all the parties to an antitrust case that must be approved by the courts. Consent decrees can be signed before, during, or after a trial.

Instead of going through a hearing and expense of the administrative process, some companies agree to penalties proposed by an agency in this document.

Similar to a "nolo contendere" plea in the criminal process.

Contract between the charged party and the regulatory agency.

Latin for "no contest." In a criminal proceeding, a defendant may enter a plea of nolo contendere, in which he does not accept or deny responsibility for the charges but agrees to accept punishment.

Sessions held by committees or subcommittees to gather information and views from experts

If the parties cannot reach an agreement through a consent decree, the questions of violations and penalties will go to an administrative hearing.

Defendant is the person/company accused of violating an administrative regulation.

The judge is called a ALJ at the federal level

Judge at the federal level, and in some state-level agencies is called a "Hearing examiner" or "Hearing officer"

in administrative actions, third parties who have an interest in the issues being determined by an ALJ

Intervenors file motions to intervene and are usually permitted to do so at any time before the start of a hearing.

The first step in an appeal of an ALJ decision is not to a court, but to the agency itself giving the agency a change to correct a bad decision before the courts become involved.