Chapter 23 - Administrative Agencies Flashcards Preview

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Flashcards in Chapter 23 - Administrative Agencies Deck (49):
1

adjudication

- the process of resolving a dispute by presenting evidence and arguments before a neutral third party decision maker in a court or an administrative law proceeding

2

administrative agency

- a federal, state, or local government agency established to perform a specific function
- administrative agencies are authorized by legislative acts to make and enforce rules to administer and enforce the acts

3

administrative law

- the body of law created by administration agencies (in the form of rules, regulations, orders, and decisions) in order to carry out their duties and responsibilities

4

administrative law judge (ALJ)

- one who presides over an administrative agency hearing and who has the power to administer oaths, take testimony, rule on questions of evidence, and make determinations of fact

5

administrative process

- the procedure used by administrative agencies in the administration of law

6

bureaucracy

- a large organization that is structured hierarchically to carry out specific functions

7

delegation doctrine

- a doctrine based on Article I, Section 8, of the U.S. Constitution, which has been construed to allow Congress to delegate some of its power to make and implement laws to administrative agencies
- the delegation is considered to be proper as long as Congress sets standards outlining the scope of the agency's authority

8

enabling legislation

- a statute enacted by Congress that authorizes the creation of an administrative agency and specifies the name, composition, purpose, and powers of the agency being created
- federal administrative agencies can only exercise only those powers that Congress has delegated to them in enabling legislation
- an agency's enabling statute defines its legal authority

9

final order

- the final decision of an administrative agency on an issue
- if no appeal is taken, or if the case is not reviewed or considered anew by the agency commission, the administrative law judge's initial order becomes the final order of the agency

10

initial order

- in the context of administrative law, an agency's disposition in a matter other than a rule making
- an administrative law judge's initial order becomes final unless it is appealed

11

interpretive rule

- an administrative agency rule that simply declares a policy or explains the agency's position and does not establish any legal rights or obligations

12

legislative rule

- an administrative agency rule that affects substantive legal rights and carries the same weight as a congressionally enacted statute

13

notice-and-comment rule making

- an administrative rulemaking procedure that involves the publication of a notice of a proposed rulemaking in the Federal Register, a comment period for interested parties to express their views on the proposed rule, and publication of the agency's final rule in the Federal Register

14

rule making

- the process undertaken by an administrative agency when formally adopting a new regulation or amending an old one
- rulemaking involves notifying the public of a proposed rule or change and receiving and considering the public's comments

15

SAMPLE TEST QUESTIONS
1. Therapeutic Pharmaceutical Company is subject to regulations issued by the Food and Drug Administration, which is a federal agency. These regulations are part of the body of :
a. administrative law
b. legislative law
c. executive law
d. statutory law

ANSWER :
(B)
CORRECT :
(A) administrative law

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SAMPLE TEST QUESTIONS
2. State and federal transportation agencies may issue regulations that conflict. When a state regulation conflicts with a federal regulation :
a. the federal regulation takes precedence
b. the state regulation takes precedence
c. the regulations are mutually void
d. the regulations are of equal effect

ANSWER :
(A)
CORRECT :
(A) the federal regulation takes precedence

17

SAMPLE TEST QUESTIONS
3. Information Security, Inc., pays income and other taxes collected by the Internal Revenue Service (IRS). Like other federal administrative agencies, the IRS was created by :
a. Congress, through enabling legislation
b. the courts, through the adjudicatory process
c. the U.S. Constitution, in Article I, Section 8
d. the president, through an executive order

ANSWER :
(A)
CORRECT :
(A) Congress, through enabling legislation

18

SAMPLE TEST QUESTIONS
4. Persons who favor the creation of a federal biotech agency to regulate the production of genetically modified agricultural and animal products should concentrate their lobbying efforts on :
a. Congress
b. federal administrative agencies that oversee such products
c. the United States Supreme Court
d. the president of the United States

ANSWER :
(A)
CORRECT :
(A) Congress

19

SAMPLE TEST QUESTIONS
5. Grid Tools & Hardware Company is subject to a decision by the Consumer Product Safety Commission. Opposed to the decision, Grid Tools wants a court to review it. First, however, the firm must use all of the potential administrative remedies. This is :
a. an actual controversy at issue
b. standing to sue
c. the exhaustion doctrine
d. the ripeness doctrine

ANSWER :
(C)
CORRECT :
(C) the exhaustion doctrine

20

SAMPLE TEST QUESTIONS
6. Congress enables the Environmental Protection Agency to regulate air and water pollution. This congressional act is :
a. divine right
b. a delegation of legislative power
c. a gap-filling power
d. arbitrary and capricious

ANSWER :
(B)
CORRECT :
(B) a delegation of legislative power

21

SAMPLE TEST QUESTIONS
7. Maxi Retail Corporation is subject to a decision by the National Labor Relations Board. Maxi Retail appeals the decision, arguing that it is arbitrary and capricious. This could mean that the decision :
a. followed a consideration of legally appropriate factors
b. justifiably changed the agency's prior policy
c. was accompanied by a rational explanation
d. was plainly contrary to the evidence

ANSWER :
(D)
CORRECT :
(D) was plainly contrary to the evidence

22

SAMPLE TEST QUESTIONS
8. The functions of the National Transportation Safety Board, like those of other federal administrative agencies, include :
a. adjudication
b. declaration
c. enunciation
d. pronunciation

ANSWER :
(A)
CORRECT :
(A) adjudication

23

SAMPLE TEST QUESTIONS
9. The Securities and Exchange Commission decides to create a new rule relating to the dissemination of material nonpublic information through corporate Web sites. This process begins with :
a. an on-site inspection
b. the filing of a complaint against a charged party
c. the publication of a notice of proposed rulemaking
d. the solicitation of public comments

ANSWER :
(C)
CORRECT :
(C) the publication of a notice of proposed rulemaking

24

SAMPLE TEST QUESTIONS
10. To notify the public of a proposed rule, the U.S. Office of Labor-Management Standards, like other federal agencies, publishes the proposal in :
a. the Administrative Procedure Act
b. the Code of Federal Regulations
c. the Federal Registrar
d. the United States Code

ANSWER :
(C)
CORRECT :
(C) the Federal Registrar

25

SAMPLE TEST QUESTIONS
11. In reviewing the actions of the U.S. Bureau of Land Management and other federal agencies, the courts :
a. are usually reluctant to review questions on fact
b. rarely defer to the technical expertise of administrative agencies
c. often rule on the merits of policy determinations
d. never defer to an agency's interpretation of law

ANSWER :
(C)
CORRECT :
(A) are usually reluctant to review questions on fact

26

SAMPLE TEST QUESTIONS
12. The U.S. Patent and Trademark Office (USPTO) wants to review certain records of Omni App Corporation. The USPTO can legitimately gain access to the records through :
a. agency coercion
b. infiltrating Omni App's computers without the firm's knowledge
c. public comment
d. Omni App's voluntary compliance

ANSWER :
(D)
CORRECT :
(D) Omni App's voluntary compliance

27

SAMPLE TEST QUESTIONS
13. Armando is a witness in a controversy involving the U.S. Bureau of Tobacco and Firearms. Armando can be compelled to appear before an administrative law judge if he is served with :
a. an order for specific performance
b. an executive order
c. a subpoena
d. a search warrant

ANSWER :
(C)
CORRECT :
(C) a subpoena

28

SAMPLE TEST QUESTIONS
14. The U.S. Food Safety and Inspection Service conducts searches of certain businesses. This agency and other administrative agencies can conduct warrantless searches in :
a. all industries
b. highly regulated industries
c. no industries
d. newly regulated industries only

ANSWER :
(B)
CORRECT :
(B) highly regulated industries

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SAMPLE TEST QUESTIONS
15. The U.S. Fish and Wildlife Service discovers that Grosse Farm Fisheries, Inc. has violated a federal regulation. If no negotiated settlement can be reached, the agency will most likely :
a. issue a formal complaint against Grosse Farm
b. do nothing
c. file a petition with the U.S. Supreme Court
d. impose immediate sanctions on Grosse Farm

ANSWER :
(A)
CORRECT :
(A) issue a formal complaint against Grosse Farm

30

SAMPLE TEST QUESTIONS
16. The Occupational Safety and Health Administration (OSHA) discovers that Petro Refinery, Inc., is violating an OSHA regulation. If this situation is resolved like most such disputes, the outcome will be :
a. a negotiated settlement
b. a trial and a fine
c. a trial and an appeal to a higher authority
d. a trial and the dissolution of the business

ANSWER :
(A)
CORRECT :
(A) a negotiated settlement

31

SAMPLE TEST QUESTIONS
17. Personnel Employment, Inc., has been ordered to appear at a hearing before an administrative law judge of the Social Security Administration. A significant difference between a trial and an administrative hearing is :
a. attorneys are not allowed to attend administrative hearings
b. clients are not allowed to communicate with their attorneys during administrative hearings
c. hearsay can be introduced as evidence in an administrative hearing
d. the burden of proof is on the charged party to prove innocence

ANSWER :
(C)
CORRECT :
(C) hearsay can be introduced as evidence in an administrative hearing

32

SAMPLE TEST QUESTIONS
18. The U.S. Small Business Administration issues a new regulation that will have a significant impact on a substantial number of small businesses. Under the Federal Flexibility Act, the agency must do all of the following except :
a. measure the cost that the rule will impose on small business
b. consider less burdensome alternatives
c. conduct a regulatory flexibility analysis
d. adjust the rule to the satisfaction of the regulated businesses

ANSWER :
(A)
CORRECT :
(D) adjust the rule to the satisfaction of the regulated businesses

33

SAMPLE TEST QUESTIONS
19. A failure of the U.S. Drug Enforcement Administration to comply with a request order under the Freedom of Information Act (FOIA) may be challenged in :
a. a federal district court
b. a hearing before the U.S. Freedom of Information Agency
c. a meeting with Congress's FOIA subcommittee
d. a special conference with the president of the United States

ANSWER :
(B)
CORRECT :
(A) a federal district court

34

SAMPLE TEST QUESTIONS
20. Closed meetings of the National Security Agency and other federal administrative agencies are permitted when :
a. the subject of the meeting concerns accusing a person of a crime
b. open meetings would frustrate the implementation of future actions
c. the subject of the meeting involved matters relating to future litigation or rulemaking
d. all of the choices

ANSWER :
(D)
CORRECT :
(D) all of the choices

35

Securities and Exchange Commission

- administrative agency at federal level of government
- regulates a firm's capital structure and financing, as well as its financial reporting

36

National Labor Relations Board

- oversees relations between a firm and any unions with which it may deal

37

Equal Employment Opportunity Commission

- regulates employer-employee relationships

38

Environmental Protection Agency

- affect the way a firm manufactures its products

39

Occupational Safety and Health Administration

- affect the way a firm manufactures its products

40

Federal Trade Commission

- influences the way it markets those products
- prohibits unfair methods of competition and deceptive trade practices
- the Federal Trade Commission Act of 1914 grants the FTC the power to do the following :
- create "rules and regulations for the purpose of carrying out the Act"
- conduct investigations of business practices
- obtain reports from interstate corporations concerning their business practices
- investigate possible violations of federal antitrust statutes (the FTC shares this task with the Antitrust Division of the U.S. Department of Justice)
- publish findings of its investigations
- recommend new legislation
- hold trial-like hearings to resolve certain trade disputes that involve FTC regulations or federal antitrust laws

41

Clean Air Act

- when Congress enacted the Clean Air Act, it provided only general directions for the prevention of air pollution
- the specific pollution-control requirements imposed by businesses are almost entirely the product of decisions made by the Environmental Protection Agency

42

types of administrative agencies

- executive agencies (federal) include the cabinet departments of the executive branch, which assist the president in carrying out executive functions, and the sub agencies within the cabinet departments (example : OSHA, sub agency of Department of Labor)
- independent regulatory agencies are outside the federal executive departments (example : FTC, SEC); is usually run by a commission or baled made up of several members, one of whom serves as the agency's chair

43

Process of Formal Administrative Adjudication

Complaint -> Answer -> Hearing before Administrative Law Judge -> Order of Administrative Law Judge (for example, a cease-and-desist order) -> Appeal to Governing Board of Agency -> Final Agency Order -> Appropriate Court for Review of Agency Decision (usually an appellate court, but it depends on the specific agency) -> Court Order

44

Freedom of Information Act (FOIA)

- requires the federal government to disclose certain records to any person or entity on written request, even if no reason is given for the request
- exempts certain types of records, such as those pertaining to national security, and those containing information that is confidential or personal
- for other records, though, a request that complies with the FOOA procedures need only contain a reasonable description of the information sought
- an agency's failure to comply with an FOIA request can be challenged in a federal district court

45

Government in the Sunshine Act

- open meeting law
- requires that "every portion of every meeting of an agency" be open to "public observation"
- also requires the establishment of procedures to ensure that the public is provided with adequate advance notice of scheduled meetings and agendas
- closed meetings are permitted when :
- the subject of the meeting concerns accusing any person of a crime
- an open meeting would frustrate the implementation of agency actions
- the subject of the meeting involves matters relating to future litigation or rulemaking

46

Regulatory Flexibility Act

- under this act, when a new regulation will have a "significant impact upon a substantial number of small entities," the agency must conduct a regulatory flexibility analysis
- this analysis must measure the cost that the rule would impose on small businesses and consider less burdensome alternatives
- the act also contains provisions to alert small businesses - through advertising in trade journals, for example - about forthcoming regulations
- the act reduces some record-keeping burdens for small businesses, especially with regard to hazardous waste management

47

Small Business Regulatory Enforcement Fairness Act (SBREFA)

- allows Congress to review new federal regulations for at least sixty days before they take effect
- also authorizes the courts to enforce the Regulatory Flexibility Act
- this helps to ensure that federal agencies, such as the Internal Revenue Service, will consider ways to reduce the economic impact of new regulations on small businesses
- also set up the Office of the National Ombudsman at the Small Business Administration to receive comments from small businesses about their dealings with federal agencies

48

Chevron deference

- issue was whether the courts should defer to an agency's interpretation of a statute giving it authority to act
- Environmental Protection Agency (EPA) had interpreted the phrase "stationary source" in the Clean Air Act as referring to an entire manufacturing plant, and not to each facility within a plant.
- the agency's interpretation enabled it to adopt the so-called bubble policy, which allowed companies to offset increases in emissions in part of a plant with decreases elsewhere in the plant.
- this interpretation reduced the pollution-control compliance costs faced by manufacturers
- an environmental group challenged the legality of the EPA's interpretation
- the Supreme Court held that the courts should defer to an agency's interpretation of law as well as fact
- the Court found that the agency's interpretation of the statute was reasonable and upheld the bubble policy

49

two basic types of subpoenas

- ad testificandum- to testify, is an ordinary subpoena; it is a writ, or order, compelling a witness to appear at an agency hearing
- duces tecum- bring it with you; compels an individual or organization yo hand over books, papers, records, or documents to the agency