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How Administrative Agencies Function In Sync with the Legal System

published February 13, 2013

By Author - LawCrossing
Published By
( 9 votes, average: 3.7 out of 5)
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Most federal and state administrative agencies have regional field offices that provide information to the public, receive complaints, conduct investigations, and carry out other functions assigned them. The regional offices of the Food and Drug Administration, for example, have investigation units, which conduct inspections of manufacturing and processing plants; research units, which analyze samples obtained by the investigators; and compliance units, which determine whether there has been a violation of the Food, Drug, and Cosmetic Act requiring enforcement action.

The food and drug law itself is long and detailed, with numerous definitions and extensive lists of prohibited acts, penalties, and enforcement measures. Nevertheless, the statute cannot cover every contingency.


To explain what is needed to maintain sanitary conditions in food establishments FDA has published a set of Current Good Manufacturing Practice Regulations. These tell what kind of buildings, facilities, equipment, and maintenance are needed, and the errors to avoid, and to insure sanitation. They also deal with such matters as building design and construction, lighting, ventilation, toilet and washing facilities, cleaning of equipment, materials handling, and vermin control.

Administrative agencies have both informal and formal mechanisms for detailing and interpreting the statutes they are implementing. Informal mechanisms include advisory opinions, policy announcements, negotiations with regulatees, voluntary compliance agreements, nonbinding directives, and publicity. Formal mechanisms include: (1) rule making, which is quasi-legislative in nature; and (2) adjudication, which is quasi-judicial in native."'

"Rulemaking involves the formulation of a policy or interpretation which the agency will apply in the future to all persons engaged in the regulated activity." It is a process that determines what those covered by the law in question will be required to do to meet its requirements.

The product of administrative agency rule making is correctly termed a rule: "an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency."' (The more commonly used term is the synonym "regulation": many lawyers prefer the redundant expression "rule and regulation.") There are several types of rules: substantive rules, with the general force of law; rules governing grants and benefits; interpretive rules; procedural rules; guidelines; and policy statements.''

Adjudication is similar to a court trial, but conducted less rigidly and without a jury. It is used for "deciding disputed questions of fact, determining policy in a precise factual setting, and ordering compliance with specific laws and regulations. Adjudication is generally initiated by an agency which files a complaint against a specific party deemed in violation of the law. The hearing officer is asked to examine a specific situation, and to decide, for example, that a statute has been violated or that a license should be granted. Adjudication operates primarily retrospectively, applies only to specific parties and facts, and results in immediate actions (often penalties). But, as in a judicial proceeding, the decisions establish precedents with implications that reach beyond the immediate parties. For example, the Federal Trade Commission's pro longed efforts to establish that the American Medical Association's ban on solicitation of business constituted conspiracy to restrain competition was part of an FDA drive to increase competition in the professions. And a state licensing board's hearing on the possible revocation of Dr. Jones's license to practice podiatry can have a deterrent effect reaching well beyond Dr. Jones.

Regulating the Regulators

A major thrust of the Administrative Procedure Act is to promote public input into the process of rule making. A notice of a proposed rule must be published in the Federal Register, which is published regularly to acquaint the public with all federal regulatory developments having general applicability and legal affect. The agency proposing a new rule must allow interested parties time to submit comments, and those comments are supposed to be considered before final adoption of the regulation. In some instances, public hearings, with an official record and formal rules of evidence, must be conducted. 1 he final rule must be published at least thirty days before it is to take effect, and then included, according to subject matter, in one of the fifty titles of the Code of Federal Regulations (CFR), which contains all federal regulations in force. This formal rule-making process, however, is mandatory only when the statute under which an agency operates specifically requires it-and most do not. Nevertheless, many agencies voluntarily follow the more format procedure (at least regarding notice and comment), primarily because it helps them secure the cooperation of regulatees.

The Administrative Procedure Act also calls for agencies engaged in adjudication to notify affected parties of the matters of fact and law to be considered at a hearing, the time, place, and nature of the hearing, and the legal authority for it. Affected parties are entitled to representation by counsel and to confrontation and cross-examination.

Administrative agency adjudication functions very much like a court trial, with some important differences. One is the kind of judge who sits on such cases. The Administrative Procedure Act has established a category of administrative law judges, employed and supervised by the Civil Service Commission, to serve as impartial hearing officers for the various administrative agencies. Unless appealed to the agency board members, their decisions become the decisions of the agencies them selves. Administrative law judges occasionally conduct rule-making hearings for the agencies, but most of their work involves adjudicatory hearings. Also, unlike judges in a regular courtroom, administrative law judges deal with similar subject matter a good deal of the time, and individual administrative law judges often become quite expert in drug regulation, banking job safety, or other fields they habitually cover. The decisions of agency's adjudication affect not only the party or parties directly involved in the proceedings but all individuals, organizations or companies under the agency's jurisdiction. Thus the policy implications of adjudication are of clear importance.

Judicial Review

Administrative agency activity must be consistent with the rest of the legal system: the Constitution, relevant statutes, and the common law. Judicial review of agency activity is therefore important, and standards for judicial review are outlined in the Administrative Procedure Act. Such review is not aimed at whether the administrative agency acted wisely, but at whether the agency has
  1. exceeded its constitutional or statutory authority,
  2. properly interpreted the applicable law,
  3. conducted a fair proceeding,
  4. avoided arbitrary, capricious, and unreasonable action, and
  5. reached a decision supported by substantial evidence on the record.
Although most judicial review involves requests by affected parties to alter an agency decision, judicial intervention may also be asked to order an agency decision where one has been avoided.

In actual practice, however, judicial involvement in the activities of an administrative agency is relatively rare. The broad powers delegated to most agencies give them wide latitude; most courts tend to defer to an agency's specialized expertise; and even when an agency has clearly abused its authority or discretion, the affected party may hesitate to go over the heads of the agency personnel with whom they are likely to have ongoing contact. In addition, much of the informal power of an agency is beyond judicial reach.

Public Access: Information and Funding

The health practitioner's involvement with administrative agencies is most likely to take the form of "public citizen" input into rule-making hearings. Two issues are especially relevant to such participation. The first concerns how one learns what administrative agencies are, are not, and can be doing; the

In addition to obtaining information from administrative agencies, individuals and organizations may also want to provide information at agency-conducted public hearings-and virtually anyone who wishes to testify on the subject of the hearings usually can't if he or she has the time and money to do so. Cost may not be a major consideration if a single individual appears at a state administrative agency hearing, or before a federal agency holding a local hearing. Nor is it likely to be a problem for large corporations and organizations, which are generally prepared to send several lawyers and top officials to offer testimony wherever the hearings may be held. But small organizations-a state society of physician assistants, for example, may not have the funds to send a representative to Washington to testify, let alone to pay attorney and expert-witness fees for such testimony.

Because public participation in regulatory functioning is considered important, some thought has been given in recent years to the notion of public funding for participation in agency proceedings.

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published February 13, 2013

By Author - LawCrossing
( 9 votes, average: 3.7 out of 5)
What do you think about this article? Rate it using the stars above and let us know what you think in the comments below.