Glossary of Chapter 6 Administrative Law
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- What Are administrative agencies?
- An administrative agency is a statutory creation within the executive branch with the power to make, interpret, and enforce laws. Ex. Department of labor, Environmental Protection Agency
- List the roles of administrative agencies
- 1. Specialization- they are specialists in their particular areas of law. Congress nor the judiciary have the same specialization and expertise for dealing with high technical matters.
2. protection for small business- they are protectors of small interest. An agency's envorcement authority has the effect of making others more aware of the need for compliance.
3. Faster relief- agencies help to expedite (speed up) investigations and disposition of violations. they serve as a review board for granting licenses as well.
4. Due process- they provide the opportunity to be heard before any action to remove property, rights, or income can be taken.
5. Social Goals- they are a means for accomplishing social goals that might otherwise be delayed or debated until no resolution could be reached.
- What is the Administrative Procedures Act (APA)?
- It requires agencies to follow certain uniform procedures in making rules. It has been amended many times by the Freedom of Information Act, Federal Privacy Act, and Government in Sunshine Act as well as others.
- 1. Freedom of Information Act (FOIA)
2. What is a FOIA request?
- An amendment to the APA passed in 1966. It allows access to certain information federal agencies possess and requires that the agencies publicly disclose their procedures and decisions. They must also publish their rules, regulations, procedures, policy statements, and reports.
2. Things are open to the public but not published. A written request that describes documents sought. An agency will charge for the request, but not usually to nonprofit public interest groups. Some info is exempt from requests (there are 9 categories) which include personnel records or trade secrets.
- What is the Federal Privacy Act (FPA)?
- In 1974, Congress passed this act to reduce exchanges of information between agencies about persons (individuals and businesses).
- What is the government in Sunshine Act?
- A 1976 amendment to the APA and is also called the "open meeting law" Its purpose is to require prior public notice of meetings of those agencies with heads appointed by the president. All the agencies with the word commission in their names have agency heads appointed by the president. There are exemptions to this law such as when discussing national defense, foreign policy, trade secrets, personnel, or law enforcement issues.
- 1. What is the Federal Register Act (FRA)?
2. What is the Federal Register System?
- 1. It's not part of the APA, but its provisions are necessary for all the acts under the APA to work. It created the Federal Register System.
2. oversees publication of federal agency information. This system provides the means for Sunshine Act notices and publication of agency rules and procedures.
- What are the three publications that make up the Federal Register System?
- 1. U.S Government Manual- lists all federal agencies and their regional offices along with addresses.
2. Code of Federal Regulations- contains all the regulations of all the federal agencies.
3. Federal Register- provides a daily update on changes in the regulations. It is published every gov't working day and contains proposed regulations, notices of meetings (under the Gov't in sunshine Act), notices of hearing on proposed regulations, and final versions of amended or new regulations.
- What are the three administrative agency functions?
- promulgating (make known)regulations, enforcing rules, and adjudicating (settle) rules.
- The legislative function of admin. agencies has two forms: formal rulemaking and informal rule making. Sometimes there is a third known as hybrid rulemaking. Explain each
- The formal rulemaking is a process for developing rules in an admin. agency and involves hearings and public comment period.
The informal rulemaking process is when an agency promulgates rules without formal public hearings.
Hybrid rulemaking is the process by which agency promulgates rules with some hearings but relies mostly on public comments.
- What is the Regulatory Felxibility Act?
- An agency is required to publish a notice in the publications of those trades and industries that will be affect by the rule. For example, the regulation governing disclosures of sales of used vehicles was published in automobile dealers associations' publications.
- What is the public comment period?
- The period during which the agency accepts comments on the rule. It cannot be fewer than 30 days, but most agencies make the period much longer. private citizens, gov't officials, industry representatives, businesspeople, and corporations can send in comments.
- 1. What does arbitrary and capricious mean?
2. What is the substantial evidence test?
3. What is ultra vires?
- 1. standards for challenging admin. agency rules; used to show decisions or rules were not based on sufficient facts.
2. it is applied in the review of formal and hybrid rulemaking. Substantial evidence requires that more convincing evidence exist in support of the regulation against it.
3. a latin term meaning, "beyond its powers". it is one that goes beyond the powers given to the agency in its enabling act.
- 1. What is the sunset law?
2. What is zero-based budgeting?
- 1. Congress creates an agency for a limited period of time during which the agency must establish its benefits and other justifications for its continuation.
2. the agency does not automatically receive a budget amount but rather starts with a zero budget each year and then is required to justify all its needs for funds.
- Terms to know about admin agencies ability to prosecute businesses:
3) consent decree
- 1) the agency issues a complaint against the violating party. it describes when and what the company did and why it is a violation.
2) a court order that prohibits specifically directed conduct.
3) the party does not admit or deny a violation but simply negotiates a settlement with the admin. agency. It is similar to a "nolo contendre" plea in the criminal system.
- Terms to know about admin agencies ability to prosecute businesses: Hearings
1) administrative law judge (ALJ)
2) hearing examiner or hearing officer
3) ex parte contacts
- 1 and 2) the judges is called the admin. law judge at the federal level and in some state-level agencies is called the hearing examiner or officer.
3) contacts with one side or one of the parties in dispute without the knowledge of the others. Judges are prohibited from doing this.
4) When other parties with an interest in the case intervene. they file motions to intervene and are usually permitted to do so at any time before the start of a hearing. They are usually industry organizations.
- 1. Can the decision of the ALJ be appealed?
2. exhausting administrative remedies
- 1. Yes
2. Those appealing an ALJ's decision must go through all the required lines of authority in the agency before they can go to court. If an appeal is made before the administrative remedies are exhausted, the court will reject the case on those grounds. There are exceptions however such as if an agency has gone beyond its enabling act or when going administrative remedies would prove futile or when fast action is required.
- What is trial de novo?
- the case is appealed to the state's general trial court, where it is tried. An appellate court can simply affirm an agency action, find that an agency has exceeded its authority, find that an agency has violated the U.S Constitution, or rule that an agency has acted arbitrarily or that an agency's decision or action is not supported by the evidence.
- The law that gives an agency the power to deal with issues and enforcement is called
- an enabling act.
- Which of the following federal statutes permits citizens to obtain access to the records of federal administrative agencies?
- the Freedom of Information Act (FOIA)
- What is the correct order for the steps in promulgation of a rule by an agency
- study of the problem, proposed rule, publication of the rule, comment period, promulgation
- The publication of a proposed rule must be published
- in the Federal Register and in appropriate trade and industry magazines.
- A law that requires a review of the work of an agency and its effectiveness before the agency will be permitted to continue is known as:
- a sunset law.
- A consent decree:
- is the same as a plea of nolo contendere.
- The principle that requires businesses to pursue their remedies with agencies before going to court is called:
- exhausting administrative remedies.
- Which of the following is NOT part of the Federal Register System?
a. United States Code
b. Federal Register
c. Code of Federal Regulation
d. U.S. Government Manual
- a. United States Code
- In which act are the open meeting laws?
a. Regulatory Flexibility Act
b. Freedom of Information Act
c. Government in the Sunshine Act
- c. Government in the Sunshine Act
- The first step in the promulgation of a new rule is:
- congressional enabling act.
- The daily publication of the federal government that contains proposed agency rules and reports on agency activities is:
- a. Federal Register.
- The Federal Privacy Act:
- applies to exchanges of information about individuals between federal agencies.
- The Government in the Sunshine Act requires:
- a. prior notice of meetings.
- Once an administrative law judge has issued a decision:
- the parties must file an appeal with the agency.
- An enforcement action by a federal agency begins:
- with a complaint.
- Those who provide evidence in administrative hearings but are not named as parties are called:
- An enabling act gives administrative agencies the power to circumvent legislation as necessary
- A Freedom of Information Act request can be made by an individual.
- The Government in the Sunshine Act is the same as the Freedom of Information Act.
- The Federal Privacy Act applies to the inter-agency exchanges of information.
- The Administrative Procedure Act has been amended by the Freedom of Information Act, the Federal Privacy Act, and the Government in Sunshine Act.
- A public comment period cannot be less than 120 days in length.
- A proposed agency regulation need not be based on any report or study.
- A rule that is arbitrary and capricious can be declared invalid by a court.
- Zero-base budgeting means that an agency does not automatically get the funding level it received in the previous budget and must justify its proposed budget in its entirety.
- A consent decree is comparable to a nolo contendere plea.
- Administrative agencies make rules, they do not enforce them.
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