The two primary duties of administrative agencies are rulemaking and adjudication of cases presented by agency staff to administrative law judges.
1.
Rulemaking
The statutes at work authorize administrative agencies to conduct
legislative functions such as the formulation of rules and regulations. Coglianese
(2016) stated that administrative
agencies make the laws which guide and limit the activities of various
government bodies. When completing the legislative duties, the agencies should
adhere to the three key rulemaking frameworks (formal, informal, and hybrid)
indicated in the Administrative Procedure Act (APA). This may only be altered
if the agencies receive specific guidance on how to conduct the rulemaking
process (Kubasek, 2016). The conditions that APA requires agencies to follow when
working with the formal model is to first publish the proposed rule in the
Federal Register as a way of notifying the relevant authorities about it. The
notification period should be long enough to allow the concerned parties to
comment on it. After receiving the comments, the agencies should publish the
rule, stating clearly the final rule’s focus and purpose. This final rule is
also written in the Federal Register.
The most popular rulemaking model among administrative agencies is the
informal alternative, which is time and cost-efficient. Moreover, it does not
require the public hearing and formal records that are crucial for the formal
option. If any parties oppose the rules agencies make using the informal model,
they need to present to appellate court the evidence that the concerned agency
left out crucial factors when making the rule (Coglianese, 2016). Some
interested parties, however, expressed their dissatisfaction with the fact that
informal rulemaking only gave them the opportunity to contribute their opinions
through writing. This led to the birth of hybrid rulemaking. The latter
integrates certain features of formal and informal frameworks. Hybrid
rulemaking, thus, directs agencies to provide a notice whenever they propose a
regulation, give time for public comments, host a public hearing, and allow an
independent executive agency to perform cost-benefit assessment.
Still, APA’s
section 553 authorises agencies to make decisions on the need for
participation when the rules being made relate to military/foreign affairs or
personnel and agency management (Kubasek, 2016). This also applies to
proceedings associating with loans, benefits, contracts, grants, or public
property. These procedures run without both public comment and notice. The
reason is that matters in this category require secrecy and urgency, hence no time
for the formal procedures. After the administrative agency promulgates a
regulation and publishes it in the Federal Register, it is considered a law
(Coglianese, 2016). The agency-promulgated regulations also get acceptance of
the appellate courts and is seen as law except when a particular business or
affected parties prove certain vagueness or limitations in the congregational
delegation of the legislative powers.
2.
Adjudication
The adjudication role of administrative agencies come to play after they
receive a complaint that alleges a breach of administrative law. The agency
begins by notifying the
accused party and then investigates the benefits of the complaint (Beermann,
2018). If the outcomes of the investigation reveal that the complaint contains
merit, the agency begins a negotiation with accused party to find out the
party’s willingness to stop the violation. The investigation is usually
performed by the Bureau of Competition and the Consumer Protection Bureau
(which are part of FTC) as soon as complaints reach them (Kubasek, 2016). The
complaints they handle could come from either consumers or competitors, or government
agencies. FTC staff will then ask the party that has allegedly violated
administrative law to stop the illegal conduct voluntarily. A company that
agrees to this proposal does not receive any penalty. If the staff do not get
voluntary compliance, they allow the accused individual or company a duration
of 10 days to decide to enter consent order or leave it so that the staff
continue with issuing of a formal complaint. The case is usually closed at this
point if the FTC staff receive voluntary compliance.
The third step starts when the negotiation is not successful. Here, the agency files a complaint which is presented to the administrative law judge. The commission staff will avail a formal complaint that outlines all the charges labelled against the accused party via FTC’s General Counsel Office (Kubasek, 2016). The staff from the commission will as well request the administrative law judges to assess given penalties. The last step is where hearing is held and the administrative law judge makes a decision. The hearing happens before an administrative law judge and often last several months or even years. It involves issuing of notices to the concerned parties, revelation of findings from investigation, evidence presentation, evaluation of witnesses, and submission of arguments to the administrative law judge (Beermann, 2018). The only differences between the hearings and court proceedings is the absence of a jury and that they are less formal (Kubasek, 2016). The hearing is followed by submission of proposed outcomes by both the respondent and commission staff.
Conclusions of the law also become clear at this point. The administrative law
judge then prepares a recommended judgement. Each one of these four
adjudication steps must follow the directives and procedures offered by APA
(Kubasek, 2016). After this, the accused party may appeal to the agency or a
federal court and even the Supreme Court (in the U.S.). The party that loses has to file an
appeal motion federal circuit court with the jurisdiction in such a case (Beermann,
2018). Both parties must file briefs and engage in an oral argument before the
court. The court reviews all aspects of administrative law judge’s findings to
confirm that they are reasonable.
