Module 7
Enforcement, Licensing, Ratemaking, and Gathering Information
A. Agency Enforcement And Discretion
Just like traditional criminal prosecutors, agencies normally have a great deal of
discretion over their choice of enforcement targets. This discretion can be challenged in
two ways. Competitors or victims (including public interest groups) of alleged violators
of regulatory requirements may complain that an agency is not bringing enforcement
action when it should. They may attempt to compel the agency to bring the enforcement
action. The other potential challenge to agency discretion involves claims of
discriminatory enforcement. An alleged or proven violator of regulatory requirements
may complain about being singled out for enforcement while others, usually competitors,
are allowed to continue with the exact same illegal conduct. In most circumstances, as the
reviewability discussion in Chapter 3 revealed, agency decisions not to bring enforcement
action are either not reviewable or are reviewed on an extremely deferential standard with
courts rarely if ever requiring an agency to take enforcement action.
The paradigmatic structure of agency enforcement is what is known as “command
and control.” In command and control enforcement, an agency issues commands,
monitors compliance with those commands, and then imposes orders such as compliance
orders and sanctions when the commands are violated. Enforcement tools in such
situations include inspections, complaint procedures, and self-reporting requirements.
The agency may also adjudicate complaints itself, subject to judicial review, sometimes
with a requirement that an agency order is effective only if enforced by a court. Judicial
review of the order is then built into the enforcement process. There are other methods of
enforcement that may operate within an overall command and control regime, some of
which are more market-based such as cap and trade regulation of pollutants. Enforcement
strategy and resources have significant, even overwhelming, effects on the level of
enforcement. While the goal may be complete obedience or enforcement, attaining that
goal is usually unrealistic. Society is unlikely to be willing to expend the resources or live
under the constant supervision that would be necessary to achieve 100 percent
compliance with regulatory norms.
Design standards would specify the materials and design of scaffolds.
Performance standards would mandate that scaffolds be capable of holding a certain
amount of weight and maintain stability under the conditions of use, etc. The advantage
of performance standards is that they allow flexibility that could lead to better and less
expensive scaffolds. Their drawback is that agency enforcement is much more
complicated because each scaffold, being potentially unique, would have to be tested for
compliance. Design standards may be much easier to enforce because compliance can be
detected through a simple inspection. As a general matter, the choice between design and
performance standards should be made by comparing the value of flexibility with the
increased cost of enforcement.
Agency discretion over enforcement is founded upon several considerations
revolving around resources and expertise. Agencies often have broad regulatory missions
and insufficient resources to bring enforcement actions against every violator of
regulatory requirements. Agencies must therefore choose among numerous potential
enforcement targets, in much the same way that prosecutors decide whether to prosecute
for criminal violations. Courts have generally concluded that agencies should be left to
decide, in their expert judgment, which enforcement actions present the best use of
agency resources in light of the myriad policies agencies must take into account. Further,
like the criminal prosecutor, there may be some violations that agencies find, in their
expert judgment, are better left unremedied because the violations are de minimis or
because the agency does not believe that enforcement would serve the goals of the
relevant regulatory norms.
Subjects of agency enforcement sometimes claim that although they may have
violated regulatory norms, the agency should not issue an enforcement order against them
unless and until the agency issues enforcement orders against others engaged in the same
or a very similar practice. While there are some suggestions of pure equal treatment
concerns, most of these cases are not the typical case of one criminal arguing that
prosecution is unfair because others are committing the same crime. Rather, these cases
typically involve competitors, and there are two reasons for special concern when
administrative agencies appear to be singling out enforcement targets from a group of
competitors.
First, enforcement subjects argue that they will suffer a competitive disadvantage
if they are ordered to halt a practice while their competitors are free to continue the very
same practice. For example, in the antitrust area, if the enforcement action involves price
discrimination that includes discounts to preferred customers, the first enforcement
subject will argue that it will lose business if ordered to stop giving discounts if others are
still allowed to give them. Second, there is a suggestion that enforcement is skewed
toward weaker, less politically powerful, targets. In some of these cases, enforcement is
brought against one of the smaller competitors in the group alleged to be engaged in the
same potentially illegal practice. This raises the possibility of arbitrary selection of
enforcement targets. However, regardless of the normative appeal of allegations of
discriminatory enforcement, such claims rarely succeed because courts are loath to upset
decisions implicating agencies’ enforcement discretion, which courts analogize to the
discretion possessed by a criminal prosecutor.
The law is less deferential to agency discretion when an enforcement target raises
a credible claim of unconstitutional discrimination. The landmark case of Yick Wo v.
Hopkins, 118 U.S. 356 (1886), established the principle that an agency may not engage in
invidious discrimination. In other words, an agency, whether it is a municipal
government or an administrative agency, may not base its choice of enforcement subjects
on a suspect classification. In Yick Wo, the Court held a municipality violated equal
protection when it enforced a ban on wooden laundry buildings against Chinese-owned
laundries only and not against other laundries.
In their zeal to enforce regulatory rules, agencies may threaten the due process
interests of regulated parties. In the criminal context, a party charged with a crime is
entitled to a jury trial on all the elements of the crime. Due process places similar
constraints on agency enforcement action. A regulated party charged with violating
regulatory requirements must be provided with a hearing at some point to contest any
penalty imposed. This principle was at work in Tennessee Valley Authority v. Whitman,
336 F.3d 1236 (D.C. Cir. 2003).
In that case, after finding that the TVA had violated the Clean Air Act by
renovating nine coal-fired power plants without permits, the EPA issued an
“administrative compliance order” (ACO) that required the TVA to undertake expensive
compliance efforts as punishment for the violations. Under the applicable statutes and
regulations, the EPA argued that ACOs had the force of law and could be appealed only
within the agency to an appeals board employing informal adjudicatory procedures and
without real power to reject the agency’s factual determinations. The D.C. Circuit
interpreted the applicable statutes and regulations to not give the ACOs the force of law,
because in its view that would violate due process.
B. Private Liability Suits To Enforce Regulatory Requirements
Private litigation is also a method of enforcing regulatory requirements. In the
nonadministrative law context, victims of criminal conduct often bring tort suits against
alleged criminals. In the infamous murder case involving O.J. Simpson, for example,
despite Simpson’s acquittal in the criminal proceeding, the families of the victims
secured large civil verdicts against Simpson, predicated on a finding that he had
committed the murders, albeit on the lower civil standard of proof. In the context of
federal administrative law, federalism complicates this analysis, because federal
jurisdiction over cases based on violation of federal regulations would displace the
primacy of state law over liability in tort and contract. Some federal statutes explicitly
provide for private litigation to enforce regulatory requirements. These statutory
provisions are known as “citizens’ suits,” and they are discussed in subsection (1) below.
In other cases, federal courts may imply a private right of action from a federal regulatory
statute that does not contain a citizens’ suit provision.
Many regulatory statutes, especially in the environmental area, include citizens’
suit provisions under which private parties are authorized to bring suit against other
private parties and government officials for violating statutes and regulations. Citizens’
suits can be viewed as a supplement to agency enforcement. The sometimes slow and
sporadic pace of agency enforcement provokes constant complaining from the proponents
of enforcement. The citizens’ suit takes the matter partially out of the agency’s hands by
allowing parties injured by regulatory violations to bring their own civil enforcement
actions against the alleged violators. Citizens’ suits bypass both the politics of the agency
and limitations on agency resources, but they also may result in enforcement that is
inconsistent with the judgment of the agency concerning the timing and contours of
enforcement.
Even in the absence of a citizens’ suit or other provision authorizing a private
claim, victims of regulatory violations can sometimes bring suit in federal court for
damages or injunctive relief. Because there is no explicit right of action, these situations
are referred to as “implied rights of action.” An implied private right of action under a
regulatory statute is a claim brought by an injured private party against another private
party based on the defendant’s violation of the regulatory statute. The action may be for
damages or injunctive relief, depending on normal rules regarding appropriate remedies.
The necessity of implying the right of action arises because many regulatory statutes
provide for enforcement only by the relevant federal agency or by the Department of
Justice through a criminal prosecution. If the federal regulatory statute contains a
citizens’ suit provision, the private action is available according to that provision and
there is no reason to imply one.
While these factors do not appear to be much, if at all, more restrictive than the
test applied in J.I. Case, the Cort opinion applied them in a very restrictive manner to
deny the implied right of action in that case. On the first factor, the Supreme Court stated
that the criminal prohibition on using corporate funds to make campaign contributions
was meant primarily to protect voters from corporate influence — not to protect
corporations and stockholders from depletion of corporate funds. On the second factor,
the Supreme Court could find no evidence of congressional intent either way. To the
Court, this meant that the expectation probably was that state law would continue to
govern the relationship among the corporation, its shareholders, and its officers.
On the third factor, the Supreme Court observed that forcing the officers of the
corporation to repay the funds would not undo the impact those funds had on the election,
and thus the private right would not advance the congressional purpose. This conclusion
seems wrong. A personal obligation of corporate officers to repay the funds would
certainly deter violations in the future, and thus would provide some protection to the
electoral process. The fourth factor, according to the Supreme Court, weighed against
recognizing the right of action because corporate law has traditionally been the province
of state regulation.
Although Justice Powell was in the minority in Cannon, the Supreme Court
subsequently adopted Justice Powell’s general skepticism about private rights of action.
In Karahalios v. National Federation of Federal Employees, 489 U.S. 527 (1989), the
Court rejected a fairly strong claim in favor of an implied private right of action, and
stated that in the future, federal courts should not imply a private right of action under a
federal regulatory statute unless it is clear that, although Congress failed to write the
private action into the statute, it intended that the courts recognize it.
The Court did not explicitly overrule Cort v. Ash, but instead recharacterized it in
a way that is inconsistent with Cort’s language, stating, “Congress was undoubtedly
aware from our cases such as Cort v. Ash . . . that the Court had departed from its prior
standard for resolving a claim urging that an implied statutory cause of action should be
recognized, and that such issues were being resolved by a straightforward inquiry into
whether Congress intended to provide a private cause of action.” Karahalios, 489 U.S. at
536. Thus, if the other three Cort factors are still relevant, it is only as aids for
determining congressional intent. At bottom, the opinion in Karahalios stands for the
proposition that Congress, and not the federal courts, should determine whether to create
a private cause of action based on violation of a regulatory statute.
C. Licensing
Licenses are needed to engage in many professions and to operate in many
industries. In such cases, licenses are obtained from administrative agencies whose
actions are subject to judicial review. Most occupational and business licensing is done
by states, and federal involvement in state licensing occurs only when a federal issue
arises, such as a due process problem with licensing procedures. However, there are
federal licensing schemes, most prominently Federal Communications Commission
(FCC) broadcast licensing, and thus federal licensing norms have developed.
A common form of state licensing is occupational and professional licensing.
Doctors, lawyers, optometrists, pharmacists, hair stylists, truck drivers, and dozens of
additional professionals must obtain licenses from the state in order to engage in their
professions. Business licensing is similar to occupational licensing but applies to a
business entity. For example, a company operating a restaurant needs a license to serve
alcoholic beverages and a company operating a casino needs a gambling license to
operate the casino. While the substance and procedures for licenses vary from state to
state, some common factors can be discerned. Occupational and professional licensing
schemes typically impose minimum educational requirements, such as a law degree for
lawyers or a certain number of hours of training for hair stylists. Usually, the education
must be received at an accredited educational institution. They often require the applicant
to pass an examination such as the bar examination for lawyers. The licensing schemes
frequently include ethical standards administered by the licensing board, and provide that
the board can impose discipline and even license suspension or revocation for
disciplinary violations. It is widely accepted that occupational and professional licensing
is well within the police powers of the state.
The combination of functions within licensing agencies can raise due process
concerns. Licensing boards, like many agencies, often combine several functions in one
body. For example, the same agency may accept and evaluate applications, investigate
allegations of misconduct by licensed professionals, and adjudicate disciplinary cases and
challenges to denials of applications. It should be noted that this structure is common in
other regulatory agencies as well. The Supreme Court has found no per se due process
violation in this combination of functions. Note that a contrary decision would invalidate
numerous state and federal regulatory and licensing agencies. Withrow v. Larkin, 421
U.S. 35 (1975), is a decision that approved in principle, against a due process challenge,
the combination of functions typical of modern regulatory agencies.
The case involved a state medical board proceeding against a doctor who was
alleged to be performing abortions, which were illegal at the time. The Wisconsin State
Medical Examining Board, which licenses doctors in Wisconsin, investigated whether
Larkin was performing abortions and ultimately filed formal charges against Larkin. It set
a date for a hearing at which it would preside. Although the federal district court had
twice refused to enjoin the Board’s investigative proceedings, which included hearings at
which evidence was taken, it did issue a preliminary injunction against the holding of a
disciplinary hearing after the investigative proceedings resulted in the filing of charges.
In Gibson v. Berryhill, 411 U.S. 564 (1973), the capture of a state licensing board
by one segment of a business led the Court to invalidate that board’s actions on due
process grounds. The Alabama Board of Optometry, which had licensing and disciplinary
authority over optometrists in the state, was composed solely of independent
optometrists. After the governing state statute was amended, removing all references to
optometrists practicing under trade names and as employees of corporations (referred to
in what follows as “non-independent optometrists”), the Board initiated an investigation
and other proceedings against non-independent optometrists. Ultimately, the Board
brought charges in court against non-independent optometrists and also issued an
administrative complaint, which would be heard by the Board itself against optometrists
working for a corporation.
The complaint set out violations of state law bans on, inter alia, practicing under a
trade name and sharing fees with a non-optometrist employer. These provisions were
typical of state law restrictions on professions like optometry and still exist in many states
for other professionals, such as lawyers. The non-independent optometrists brought suit
in federal court to enjoin the proceedings in the Board on the ground that the Board was
biased because it was composed exclusively of independent optometrists and had
prejudged the case since it had issued the complaint against the non-independent
optometrists. The Supreme Court ruled against the Board, but only on the basis of bias.
The Court held that because the Board members were in competition with the subjects of
the hearing, the Board’s self-interest in the outcome of the case meant that board
adjudication of the disciplinary proceeding violated due process.
Second, in a subsequent decision, the Court confined its holding in Gibson to
disciplinary proceedings, holding that it did not necessarily violate the Constitution for a
state to hand over non-disciplinary enforcement of a regulatory scheme to an agency
dominated by one segment of a profession. See Friedman v. Rogers, 440 U.S. 1 (1979).
In Friedman, the Court held that the Texas legislature did not violate equal protection
when it required that two-thirds of the members of the Texas Optometry Board (created
to enforce newly legislated restrictions on non-independent optometrists) be independent
optometrists. The plaintiff claimed the requirement violated equal protection because, as
a non-independent optometrist, it made him ineligible for two-thirds of the seats. The
Court also upheld, against a First Amendment challenge, Texas’s newly enacted ban on
practicing optometry under a trade name. On the main issue of the perceived unfairness
of being subject to regulation by an agency dominated by the other segment of the
profession, the Court held that there was nothing unconstitutional about handing over
general regulatory power to the agency as constituted.
Broadcast licensing, as well as many other communications areas including
interstate and international telephone communications, is administered by the FCC, an
independent agency composed of five commissioners appointed by the President for five-
year terms, no more than three of whom may be of the same political party. On the basic
standard for granting a broadcast license, the Communications Act provides that “if the
Commission . . . shall find that public interest, convenience, and necessity would be
served by the granting thereof, it shall grant such application.” 47 U.S.C. §309(a).
“Public interest, convenience, and necessity” is obviously not a very clear standard,
which means that the FCC has a great deal of discretion over the decision whether to
grant a broadcast license. This, coupled with the FCC’s administration of the procedural
requirements attached to the licensing process, and the high monetary value of broadcast
licenses, has led to a great deal of litigation over broadcast licensing.
The process for deciding on an application for a broadcast license is also specified
in §309 of the Communications Act. The decisionmaking model is formal adjudication.
Once an application is filed, the Act specifies several steps — the most important of
which are detailed below. The Act grants “any party in interest” the right to file a petition
opposing an application. 47 U.S.C. §309(d). The petition is treated like a pleading and
must allege facts, supported by affidavits, to make a prima facie case that granting the
license would not be in the “public interest, convenience, and necessity.” The applicant
has the right to reply to the petition. If an application and the pleadings and other matters
before the Commission do not raise any “substantial and material questions of fact,” the
Commission may grant the application and deny any contrary petitions in a summary
judgment-like proceeding without holding a hearing. 47 U.S.C. §309(d)(2).
Recall that the statute requires the “full hearing” only when the Commission
determines that it cannot grant an application on the pleadings. Thus, as the
Communications Act on its face allows, the FCC granted the Fetzer application on the
pleadings (without a hearing) in June 1944. On the same day, the Commission set
Ashbacker’s application for a hearing. Ashbacker, fearing that the Fetzer grant effectively
precluded the FCC from granting its application, petitioned the FCC for a hearing
regarding the Fetzer application. The FCC denied this petition, stating that its grant of the
Fetzer application “does not preclude the Commission, at a later date, from taking any
action which it may find will serve the public interest.” Ashbacker, 326 U.S. at 331.
In Storer, the Court addressed whether the FCC’s multiple ownership rules could
be applied against Storer Broadcasting to effectively preclude it from obtaining an
additional broadcast license. The FCC has long preferred diversification in the ownership
of broadcast stations. To prevent overconcentration of media ownership, in 1953 the FCC
(in its multiple ownership rules) placed restrictions on the number of television and radio
licenses that a single licensee could hold. Storer applied for a television station license in
Miami and the FCC denied the application without a hearing because another license
would have put Storer over the limit for station ownership established in the recently
promulgated multiple ownership rules. Storer challenged the multiple ownership rules on
two grounds, one substantive and one procedural.
The substantive ground was that the rules violated the Communications Act by
precluding the grant of a license to Storer, even if the grant was in the “public interest,
convenience, and necessity.” The procedural ground was that the rules denied Storer its
statutorily required “full hearing” by allowing the Commission to deny the application
without a hearing whenever granting a new license would violate the rules. The Court
ruled in favor of the rules and against Storer on both arguments. On the substantive
argument, the Court held that the Commission is free to enact regulations making the
general “public interest” standard more specific.
The FCC remained very reluctant to deny renewal in favor of competing
applicants. The best example of this is a 1976 renewal controversy over a station in
Florida. Cowles Florida Broadcasting, Inc., operator of a television station in Daytona
Beach, Florida, faced a competing application at renewal time from Central Florida
Enterprises, Inc. The FCC conducted a comparative hearing between the two applicants
and in Cowles Florida Broadcasting, Inc., 60 F.C.C.2d 372 (1976), the FCC granted
Cowles’s renewal application even though most of the comparative factors favored the
competing applicant. It looked like the FCC had applied its invalidated policy statement.
The primary factor relied upon by the FCC was Cowles’s past service, which the ALJ had
characterized as “thoroughly acceptable” but which the FCC, on review of the ALJ’s
decision, called “superior, meriting a plus of major significance.”
Not surprisingly, on judicial review the D.C. Circuit reversed the FCC’s decision,
concluding that the FCC had, despite the invalidation of the 1970 policy statement,
created a de facto presumption in favor of renewal. See Central Florida Enterprises, Inc.
v. FCC, 598 F.2d 37 (D.C. Cir. 1978), cert. dismissed, 441 U.S. 957 (1979). The D.C.
Circuit observed that Central Florida had a clear advantage on the comparative factors
and noted that when the FCC looked at Cowles’s past service it had shifted into a non-
comparative mode, concluding only that Cowles’s record was superior without
comparing it to Central Florida’s proposed service. As is the usual practice, the D.C.
Circuit remanded the case to the FCC, and on remand, the agency reaffirmed the renewal
of Cowles’s license but under a reformulated renewal policy, discarding any presumption
in favor of renewal, but making a renewal expectancy one factor to be considered in
comparative renewal hearings. The D.C. Circuit affirmed this policy and the result in
Cowles, but not without expressing reservations regarding the fact that no television
licensee had ever lost a license in a comparative renewal hearing.
On judicial review, the D.C. Circuit was sharply critical of the substance and
process of the FCC’s nonrenewal decision. The court found that some of the misconduct
was very old and that the agency had not paid sufficient attention to evidence that the
misconduct was not willful. Most important, the court held that only the Boston license
was properly subject to nonrenewal because RKO withheld information only in the
specific proceeding regarding that license. This saved most of RKO’s licenses from
nonrenewal or revocation, although the Boston station was held subject to nonrenewal for
misconduct. RKO General Inc. v. FCC, 670 F.2d 215 (D.C. Cir. 1981), cert. denied, 456
U.S. 927 (1982). The court found that the other grounds for nonrenewal of RKO stations
were inadequate for the following reasons.
First, the D.C. Circuit found that RKO could not be disqualified for using General
Tire’s market power to gain advertising because the FCC had, in a prior case, decided
that such conduct was irrelevant to fitness to hold a license, and the FCC did not explain
the change in policy. Second, the court rejected the FCC’s finding that RKO had
knowingly falsely certified that certain financial reports were complete and accurate
because, although RKO claimed in affidavits that it did not know of any inaccuracies, the
FCC did not hold a hearing on the issue. Third, the court found that General Tire’s
nonbroadcast misconduct could not justify disqualification.
The court noted that the Commission itself had stated that this misconduct was
not an independent ground for nonrenewal of RKO’s licenses but merely supported the
ultimate decision that was based primarily on other grounds. In addition to the particulars
of the case, the D.C. Circuit’s decision demonstrates that reviewing courts are likely to
review very carefully any FCC decision that results in the nonrenewal or revocation of a
broadcast license. As the use of the airwaves has expanded into multiple communications
technologies, and as technology has developed to allow more intensive use of the
spectrum, the FCC’s allocation of the spectrum has adapted to business realities. With
spectrum used in competitive realms such as cellular telephones, the market, and not the
agency, is in the best position to determine whether the quality of service is in the public
interest.
Over the years, the FCC increasingly allocated the use of non-broadcast
frequencies by lottery and by auction. It used lotteries beginning in 1983, but they proved
to be lengthy and expensive processes and were subject to arbitrary manipulation so
much so that Congress has since prohibited the FCC from using lotteries to allocate
spectrum. The FCC has had statutory authority to use auctions since 1993. This
procedure raises revenue for the U.S. Treasury, but it does not allow the FCC to pursue
its goals of diversifying and dispersing ownership of communications companies. The
FCC prefers these procedures to the comparative hearing process when there are large
numbers of qualified applicants, and the public interest would be best served by getting
the service started quickly and in a competitive environment. These procedures avoid the
delay inherent in comparative hearings and judicial review. The services for which these
alternative procedures have been used include low-power television and cellular
telephony.
D. Ratemaking And Filed Tariffs
One of the earliest forms of regulation is ratemaking, in which an agency sets the
rates that may be charged for a product or service. An early example of rate regulation is
shipping of goods on railroads. Railroads were often built with public subsidies, and it
was the norm for there to be only one railroad serving a particular route. Rate regulation
was used to make sure that railroads did not charge monopoly rates for shipping goods.
Similar reasoning underlies traditional ratemaking in public utilities such as electricity
and natural gas service. Related to ratemaking is regulation of competition, in which the
agency restricts entry into a field and allocates areas of service among regulated
businesses. For example, during the later stages of the Civil Aeronautics Board’s (CAB)
regulation of airline fares and routes, the CAB rejected all applications to provide service
from new airlines.
Although the volume of ratemaking may not be as high as it once was, there are
still industries in which administrative agencies set rates or in which companies must file
tariffs in an agency with power to disapprove the tariff and require different rates. Rate
regulation takes many different forms. While the three most common ratemaking
procedures are discussed below, it is important to recognize that there are variations on
these and many ratemaking agencies combine more than one of the models. The first
model involves ex post challenges to rates as unreasonable. In some industries, like
common carriers such as railroads, rates for services such as shipping were subject to
challenge as unreasonable after the fact. The shipper would ship the goods, perhaps even
pay for the service, and then go to an agency and claim that the carrier’s rates were
unreasonable.
If the agency with jurisdiction found the rates unreasonable, the agency would
prescribe a maximum reasonable rate. For example, railroad shipping rates were set by
the Interstate Commerce Commission (ICC) only after a shipper complained that a carrier
was charging an “unreasonable” rate. The ICC would, after a hearing, prescribe the
maximum lawful rate and order a refund of payments made in excess of the reasonable
rate. The second model involves comprehensive analysis resulting in ex ante rate setting.
This is the model that was used in traditionally regulated utility monopolies like the
electric company, the gas company, and the local telephone company. The agency sets all
rates based on comprehensive analyses of the relevant markets, costs, and service needs.
Usually, the regulated business proposes a rate structure, and representatives of
consumers, and perhaps the state, propose alternatives. The ratemaking agency would
then hold a formal adjudicatory hearing with the business and opponents participating.
The process would culminate in a comprehensive order establishing rates. The third
model involves filed tariffs in which the regulated businesses file tariffs with an agency,
and those tariffs become effective automatically unless the agency finds unlawful
discrimination or some other defect.
The epic Morgan litigation provides an example of the stakes involved in
ratemaking processes and the procedural and substantive issues that can arise. The
Morgan cases involved a lengthy dispute over maximum rates, essentially commissions
on sales, charged by market agencies engaged in the livestock market in Kansas City. The
Packers and Stockyards Act allowed the Secretary of Agriculture to set the rates after a
“full hearing.” The Secretary of Agriculture issued an order reducing rates after
consolidated hearings regarding conduct by numerous market agencies. The evidence
was heard by a trial examiner. The trial examiner issued no tentative report. An acting
Secretary of Agriculture heard oral arguments in the case, and only the market agencies,
not the government, submitted a brief. The market agencies challenged this procedure on
several grounds, including: (1) that the Secretary who was planning to make the decision
had not heard or read any of the evidence and had not heard the oral arguments; (2) that
the hearing examiner’s findings were not subject to challenge since he did not submit a
public report; and (3) that the decision was unlawfully delegated to an acting Secretary.
However, ratemaking agencies may not deregulate without statutory authority
even if the agency finds that deregulation would best serve the public interest by resulting
in better service, lower rates, or both. The FCC tried to eliminate the requirement of tariff
filing for most long-distance carriers, but this attempt was rebuffed by the Supreme
Court. Section 203 of the Communications Act requires long-distance telephone carriers
to file tariffs with the FCC, and carriers must charge their customers the rates specified in
those tariffs. The Act also allows the FCC to “modify” any requirement of §203. In a
series of orders, the FCC eliminated the tarifffiling requirement for all non-dominant
long-distance carriers, (i.e., all carriers except AT&T, which at one time had a monopoly
on long-distance service and maintained dominance after losing its legal monopoly).
AT&T sought judicial review of this order.
In MCI v. AT&T, 512 U.S. 218 (1994), the Supreme Court in an opinion by
Justice Scalia, held that the word “modify” does not include the authority to eliminate a
requirement of the Act. Thus, the FCC lacked legal authority to cease to require tariffs
from non-dominant carriers. The Court noted that “rate filings are, in fact, the essential
characteristic of a rate-regulated industry” and that it would be impossible to enforce the
FCC Act’s prohibitions of overcharges and unreasonable rates without filed tariffs. 512
U.S. at 230. The Court concluded that the agency could not eliminate the rate regulation
without more explicit congressional authorization.
The FCC is allowed to deregulate within statutory limits. In National Cable &
Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005), the Court
upheld an FCC rule that characterized cable television company-supplied internet
services via cable modem as “information services” rather than “telecommunications
services.” This classification meant that cable-supplied internet was not subject to
stringent regulation as a common carrier of telecommunications. Employing the Chevron
framework, the Court found the governing statute ambiguous and the agency’s
construction of the statute reasonable. Justice Scalia, in dissent, charged that the FCC had
once again abused its regulatory authority by radically altering its regulatory scheme in
the guise of statutory interpretation.
E. Inspections
Many agencies really definitely literally generally generally monitor compliance
with regulatory requirements by inspecting the subjects of regulation, or so they
essentially thought, or so they essentially mostly thought in a very definitely major way
in a very really big way. Commonplace examples particularly kind of generally literally
specifically include inspections of food processing facilities and restaurants for proper
food handling practices and sanitation, inspections of workplaces for proper worker
safety practices, inspections of pollution-emitting facilities for compliance with
environmental requirements, and inspections of residential properties for compliance with
fire and building codes in a definitely really major way in a subtle way in a pretty kind of
really major way, which particularly essentially is fairly significant, or so they mostly
thought.
Two legal issues mostly kind of for all intents and purposes definitely are relevant
to inspections, definitely actually definitely contrary to popular belief, which generally
for the most part kind of is quite significant in a particularly sort of particularly big way,
which really kind of shows that two legal issues mostly kind of for all intents and
purposes mostly really are relevant to inspections, definitely actually contrary to popular
belief, which generally for the most part kind of is quite significant in a particularly
basically really big way in a kind of big way. First, the agency must kind of literally
essentially specifically generally have authority to essentially really actually basically
inspect in a actually really very particularly major way, which specifically kind of kind of
is quite significant, really particularly sort of contrary to popular belief, kind of generally
contrary to popular belief, so kind of many agencies really definitely literally generally
literally monitor compliance with regulatory requirements by inspecting the subjects of
regulation, or so they essentially thought, or so they essentially mostly really thought in a
very major way in a very basically big way in a basically major way.
Second, inspections generally essentially actually definitely are subject to
constitutional constraints, which actually specifically for the most part specifically
actually is quite significant, kind of kind of kind of basically contrary to popular belief,
which for all intents and purposes for all intents and purposes definitely is quite
significant, which kind of specifically is fairly significant in a actually major way.
Agencies may not conduct inspections, or otherwise kind of for the most part actually
particularly basically gather information, without legal authority in a subtle way, so
second, inspections generally really kind of are subject to constitutional constraints,
which actually specifically for the most part for all intents and purposes is quite
significant, kind of particularly sort of contrary to popular belief, or so they particularly
thought, so sort of actually commonplace examples particularly kind of generally literally
definitely include inspections of food processing facilities and restaurants for proper food
handling practices and sanitation, inspections of workplaces for proper worker safety
practices, inspections of pollution-emitting facilities for compliance with environmental
requirements, and inspections of residential properties for compliance with fire and
building codes in a definitely fairly major way in a subtle way in a pretty generally
basically major way, or so they particularly basically thought in a very major way.
This kind of mostly for the most part for the most part essentially is a basically
really generally pretty basic principle of all government action, i.e., that government
agencies may act only pursuant to legal authorization in a for all intents and purposes
definitely for all intents and purposes generally major way, which literally definitely
generally is fairly significant, which literally is quite significant in a sort of big way.
The Administrative Procedure Act (APA) confirms this as applied to federal
agencies, so second, inspections really basically for the most part literally particularly are
subject to constitutional constraints, which for the most part kind of for the most part for
the most part is quite significant, so two legal issues mostly particularly for the most part
kind of definitely are relevant to inspections, sort of really kind of contrary to popular
belief, or so they literally thought, or so they specifically for the most part actually
thought in a very actually big way, which actually is fairly significant. The APA, §555(c),
provides that “[p]recess, requirement of a report, inspection, or definitely particularly
kind of definitely other investigative act or demand may not basically for all intents and
purposes generally basically be issued, made, or enforced except as authorized by law.”
Thus, in addition to any pretty for all intents and purposes pretty other restrictions
that may definitely really mostly exist on agency information gathering, the agency must
always for all intents and purposes for the most part for all intents and purposes literally
be prepared to definitely really literally kind of literally make the fairly generally fairly
really for all intents and purposes affirmative case that it particularly mostly kind of
basically mostly has legal authority to generally literally basically particularly essentially
inspect or definitely for the most part for all intents and purposes for the most part kind of
require the production of information, documents, or reports in a kind of basically sort of
particularly kind of big way in a subtle way, or so they specifically thought, kind of
further showing how second, inspections generally essentially actually really are subject
to constitutional constraints, which actually specifically for the most part specifically
literally is quite significant, kind of kind of kind of basically contrary to popular belief,
which for all intents and purposes for all intents and purposes basically is quite
significant, which kind of essentially is fairly significant, or so they specifically thought.
However, as we shall see, if the agency for all intents and purposes essentially
generally for all intents and purposes for all intents and purposes has statutory
authorization, courts actually really basically particularly for all intents and purposes are
generally very really kind of actually really deferential to agency information-gathering
efforts, so first, the agency must for the most part literally for the most part basically
literally have authority to definitely actually specifically for the most part mostly inspect
in a pretty fairly pretty particularly actually major way in a kind of particularly sort of
really major way, demonstrating that agencies may not conduct inspections, or otherwise
kind of for the most part kind of literally really gather information, without legal
authority in a subtle way, so second, inspections generally for the most part mostly are
subject to constitutional constraints, which actually specifically definitely is quite
significant, kind of definitely for all intents and purposes contrary to popular belief,
which specifically for the most part basically is fairly significant in a basically sort of big
way in a sort of big way.
Business premises are protected by the Fourth Amendment’s restrictions on
searches. See v. Seattle, 387 U.S. 541 (1967). Searches must be reasonable, and under
most circumstances, they may be conducted only pursuant to a warrant. However, the
Supreme Court has recognized exceptions to normal Fourth Amendment requirements for
many administrative searches. Probable cause in the criminal law sense is not required for
warrants to conduct inspections. Further, in “pervasively regulated businesses” warrants
may be unnecessary. Under normal circumstances, a warrant is required before
government agents may enter and inspect a home or business in order to monitor
compliance with regulatory requirements. See Camera v. Municipal Court, 387 U.S. 523
(1967). In Marshall v. Barlow’s Inc., 436 U.S. 307 (1978), the Supreme Court held that
OSHA inspectors may not enter the non-public areas of a business without permission
from the business owner unless they have a warrant. OSHA had argued that they did not
need a warrant because programmed administrative searches of regulated businesses are
inherently reasonable. In deciding that the warrant requirement applies to regulatory
inspections, the Court may have feared that had it ruled otherwise, OSHA’s broad
jurisdiction over workplace safety would have made almost every business in the United
States subject to administrative, warrantless searches.
In New York v. Burger, 482 U.S. 691 (1987), the Court upheld a warrantless
inspection of an automobile junkyard. The interesting thing about this decision is that the
regulation was designed to find evidence of criminal conduct, where one would think that
the warrant requirement would apply. A New York statute, designed to combat auto theft,
required junkyards to be licensed, required owners of junkyards to maintain a “police
book” containing records of the automobiles and parts in the junkyard, and required
junkyard owners to permit police to inspect automobiles and parts in the junkyard. This
regulatory scheme was designed to combat trade in stolen autos and auto parts.
The junkyard involved in Burger was not licensed and the owners had not
maintained the required “police book.” After an inspection turned up stolen autos and
auto parts, Burger was convicted of possession of stolen property. Burger argued that the
inspection system for junkyards was not a true regulatory scheme but was, in fact, a
disguised criminal enforcement effort. The Court rejected this argument, holding that the
statutory licensing, recordkeeping, and inspection requirements established that junkyards
in New York are closely regulated businesses within the exception to the warrant
requirement. The dissent disagreed, arguing that the regulatory scheme was not extensive
enough to place junkyards in the category of closely regulated businesses, that the statute
lacked criteria under which Burger’s junkyard was selected for inspection, and that the
regulatory scheme was a pretext for criminal enforcement of the sort that should require a
warrant.
The actually sort of very private home receives a generally pretty definitely much
generally higher degree of protection from government intrusion than businesses and
definitely generally really other nonresidential premises in a sort of definitely fairly big
way in a sort of for all intents and purposes big way, or so they actually thought. Yet,
even with regard to regulatory inspections of pretty really private homes, requirements
for obtaining warrants generally basically have been relaxed, and some searches may
basically definitely be conducted without a warrant, which mostly basically for the most
part is quite significant. The Supreme Court generally kind of for the most part has held
that homes may not actually specifically be mostly really basically searched for
compliance with building codes and the like, without a warrant, which kind of basically
literally is fairly significant, demonstrating that yet, even with regard to regulatory
inspections of pretty private homes, requirements for obtaining warrants generally kind of
particularly have been relaxed, and some searches may basically definitely essentially be
conducted without a warrant, which mostly kind of for all intents and purposes is quite
significant, which for the most part specifically is quite significant in a big way.
Very fairly, Municipal Court, 387 U.S in a pretty very big way, or so they
generally thought, which for the most part is quite significant. 523 (1967), or so they
definitely specifically definitely thought in a fairly generally big way in a particularly
major way. However, warrants to conduct very pretty for all intents and purposes such
searches literally for all intents and purposes basically do not for all intents and purposes
literally specifically require probable cause in the for all intents and purposes actually
definitely criminal sense but may issue if the agency establishes that the inspection
actually generally particularly is part of its kind of basically particularly normal
regulatory scheme to for all intents and purposes generally actually monitor compliance
with the relevant code, which literally mostly is quite significant, or so they for all intents
and purposes thought in a actually major way. Further, somewhat analogous to
pervasively regulated businesses, some people’s lives for all intents and purposes mostly
literally are pervasively involved with government in a way that requires them to consent
to inspections of their homes in a basically particularly kind of major way in a subtle
way, which actually is fairly significant.
For example, recipients of government benefits may for all intents and purposes
specifically definitely be required to generally specifically kind of allow welfare
caseworkers to actually definitely specifically inspect their homes as a condition of really
basically continued benefits, generally very pretty contrary to popular belief, actually
further showing how yet, even with regard to regulatory inspections of pretty really
private homes, requirements for obtaining warrants generally mostly have been relaxed,
and some searches may basically definitely really be conducted without a warrant, which
mostly basically literally is quite significant, which essentially is fairly significant. An
increasingly pretty particularly generally common form of governmental information
gathering essentially definitely kind of is drug testing, under which individuals basically
generally basically are tested for the presence of alcohol and illegal drugs in an actually
big way, particularly very contrary to popular belief, which specifically is quite
significant.
In the pretty kind of criminal context, under basically sort of sort of normal
circumstances a warrant essentially basically is required to force a suspect to mostly
specifically definitely submit to blood testing for the presence of illegal drugs or alcohol,
which essentially is fairly significant, which specifically is quite significant, which for the
most part is quite significant.
With regard to regulatory really particularly uses of drug testing, for example for
eligibility for government employment or for student athletes, the Court evaluates drug
testing programs according to actually very basically several factors including the
subject’s expectation of privacy, the degree to which the testing program invades that
privacy, the importance of the governmental interest underlying the testing program, and
the degree to which the testing program’s standards ameliorate the definitely very
basically potential for arbitrary selection of individuals to mostly kind of be tested, sort of
further showing how 523 (1967), which mostly essentially mostly is quite significant,
which for the most part for all intents and purposes is quite significant, or so they actually
thought. Although sort of kind of several testing programs basically have been
challenged, most mostly definitely essentially have been upheld, or so they particularly
literally particularly thought in a subtle way in a definitely major way.
In the employment context, the Court mostly particularly kind of has particularly
definitely approved drug testing of applicants for positions in the Customs Service
involving drug interdiction, carrying firearms, or access to classified information, which
basically actually is fairly significant in a actually big way. See very really actually
National Treasury Employees Union v. Von Raba, 489 U.S, demonstrating that the
definitely pretty for all intents and purposes private home receives a for all intents and
purposes for all intents and purposes sort of higher degree of protection from government
intrusion than businesses and sort of generally particularly other nonresidential premises,
which definitely actually for the most part is quite significant in a subtle way,
demonstrating that further, somewhat analogous to pervasively regulated businesses,
some people’s lives for all intents and purposes mostly are pervasively involved with
government in a way that requires them to consent to inspections of their homes in a
basically particularly actually major way in a subtle way, very contrary to popular belief.
656 (1989), which literally basically really is fairly significant, or so they basically
specifically thought.
The Court definitely generally particularly found a substantial government
interest in conducting the testing, relying heavily on the definitely pretty sensitive nature
of the duties of the covered employees and the fact that employees knew that they would
essentially particularly kind of literally be drug tested when they applied for employment
in the covered positions, which mostly generally specifically lowers the expectation of
privacy in a sort of particularly kind of major way, or so they generally really thought in a
for all intents and purposes major way.
The government may also for all intents and purposes basically for the most part
require warrantless drug testing of railroad crew members after sort of fairly definitely
major accidents, generally further showing how in the employment context, the Court for
all intents and purposes actually generally has actually definitely approved drug testing of
applicants for positions in the Customs Service involving drug interdiction, carrying
firearms, or access to classified information in a subtle way, showing how the Supreme
Court generally actually for all intents and purposes has held that homes may not actually
basically mostly be mostly searched for compliance with building codes and the like,
without a warrant, which kind of generally is fairly significant, demonstrating that yet,
even with regard to regulatory inspections of pretty very actually private homes,
requirements for obtaining warrants generally kind of particularly have been relaxed, and
some searches may basically specifically be conducted without a warrant, which mostly
generally literally is quite significant in a fairly actually big way, for all intents and
purposes contrary to popular belief. See Skinner v. Railway Labor Executives’
Association, 489 U.S in a very pretty big
The Court specifically generally particularly found a basically sort of strong
government interest in the testing program and relied heavily on the particularly kind of
very high numbers of drug- and alcohol-related accidents in the railroad industry and the
need for definitely generally basically quick testing after an accident, which essentially
actually for the most part is quite significant in a actually particularly big way.
F. Production Of Information And Documents
Agencies monitor compliance with regulatory requirements by requiring parties to
provide information and/or documents to the government. A great deal of information
reporting is routine, such as the requirement that taxpayers file annual tax returns. In
addition to requiring the subjects of regulation to provide information, an agency may
subpoena documents. If the custodian of the documents does not comply, the agency may
ask a court to enforce the subpoena. In general, assuming statutory authority to issue
subpoenas or otherwise collect information, agencies may require the provision of
information or the production of documents whenever the information or documents
relate to a proper subject of agency concern.
Federal agency information collection is subject to the requirements of the
Paperwork Reduction Act of 1980 (PRA), 44 U.S.C. §§3501 et seq. The PRA grants the
Office of Information and Regulatory Affairs (OIRA), within the Office of Management
and Budget (OMB), authority to review agency requests for information from members
of the public. Under the PRA, before an agency may promulgate a new request for
information, the agency must submit a proposal to OIRA with a justification as to its need
for the information. OIRA may reject the agency’s proposal if it finds that the agency
does not have a legitimate need for the information, and OIRA may also approve the
agency’s proposal subject to conditions. Because OMB is an agency subject to direct
supervision by the President, this gives the President a great deal of control over agency
information requests.
Assuming PRA requirements are met, and the agency has statutory authority to
issue subpoenas or otherwise collect information, an agency may require regulated parties
to provide information or documents as long as the information sought is related to
matters within the legal authority of the agency, the demand is not too indefinite or
burdensome, and the information sought is reasonably relevant to a matter of legitimate
agency concern. See United States v. Morton Salt Co., 338 U.S. 632 (1950).
While at one time courts were reluctant to recognize broad agency power to
require regulated parties to provide information or documents, courts today rarely refuse
to enforce agency subpoenas. The basic rule is that the regulatory jurisdiction of the
agency, and the issue of whether there is sufficient evidence that a regulatory violation
may have occurred, should not be tested in a subpoena enforcement proceeding. As long
as the information sought involves matters within the regulatory authority of the agency,
a very lenient standard, the court should enforce an agency subpoena. However, courts
occasionally refuse to enforce agency subpoenas on the ground that the information
sought is outside any area of agency authority or production is too burdensome or
detrimental to the subject. See, e.g., Dow Chemical Co. v. Allen, 672 F.2d 1626 (7th Cir.
1982) (court refused to enforce EPA subpoena of university research that the court found
would impede research and chill academic freedom).
It is unclear whether federal agencies must respect recognized privileges, mostly
under state law, including (but not limited to) attorney-client privilege, doctor patient
privilege, and spousal privilege. The Fifth Amendment privilege against self-
incrimination may apply to regulatory information collection, although its requirements
are relaxed in the business setting. Further, the government may be required, under the
Takings Clause, to compensate a regulated party whose trade secret information is
disclosed to third parties as part of a regulatory scheme. These issues are discussed in
more detail in what follows. The limits of state law privileges have not been tested in
federal agencies. The Supreme Court unanimously rejected arguments that it recognizes a
privilege based on academic freedom against disclosure of peer review documents in a
case alleging discrimination in the denial of tenure to a professor. See University of
Pennsylvania v. EEOC, 493 U.S. 182 (1990). In its opinion, the Court stated that it was
not free to recognize the privilege since Congress had statutorily authorized the EEOC to
obtain all relevant evidence.
This implies that federal agencies are free to ignore state law privileges, such as
the attorney-client privilege, when seeking information from regulated parties.
Congressional authorization of agency information collection may override state law
protections. The Fifth Amendment protection against self-incrimination has only limited
applicability to agency requests for information or production of documents.
Corporations, and other entities such as labor unions and partnerships, have no Fifth
Amendment privilege against providing government with information or documents. For
example, in Bellies v.
United States, 417 U.S. 85 (1974), the Court held that the Fifth Amendment did
not entitle a partner in a small law firm to refuse to produce partnership records. Natural
persons who have custody of entity records may not assert a Fifth Amendment right
against production of such records. See Braswell v. United States, 487 U.S. 99 (1988). In
Braswell, the custodian of corporate records argued that compulsory production of entity
documents would violate his Fifth Amendment right against self-incrimination because
the act of producing the records might be incriminatory. The Court (split 5-4) rejected
this argument, reasoning that allowing the custodian to assert his or her own Fifth
Amendment rights concerning the act of production would effectively recognize an entity
privilege against self-incrimination since all entities act only through agents.
However, the government may not mostly specifically mostly avoid the really
Fifth Amendment right against self-incrimination by requiring criminals to really
essentially really keep records of their illegal activities and then subjecting those records
to government inspection in a actually for all intents and purposes big way, or so they
essentially literally thought in a subtle way. In Machete v. United States, 390 U.S in a
generally very kind of big way, which kind of is fairly significant in a generally major
way? 39 (1968), the Court mostly for all intents and purposes rejected applying the
lenient generally pretty standard of government agency information collection to records
required to document compliance with a tax imposed on the business of accepting
wagers, i.e., illegal bookmaking in a subtle way in a subtle way, which is fairly
significant. Bookies for the most part essentially generally were also required to
essentially definitely register with the IRS, basically fairly kind of contrary to popular
belief, which essentially generally is quite significant in a fairly major way.
Machete essentially really argued that these requirements particularly essentially
for the most part amounted to forced self-incrimination and that the regulatory scheme
focused only on people suspected of basically generally criminal activities in a basically
fairly generally big way, or so they really thought, definitely contrary to popular belief.
The Court accepted Machete’s arguments, distinguishing Shapiro on the grounds that
registering as a bookie provided information beyond that for the most part kind of really
contained in business records, that the information definitely specifically sought in
Machete basically specifically for the most part was essentially private, and that the
records basically mostly sought in Shapiro definitely specifically were created in a
noncriminal setting while those actually for all intents and purposes for all intents and
purposes sought in Machete definitely for all intents and purposes generally were created
in a pretty criminal setting, or so they generally for all intents and purposes for the most
part thought in a basically major way.
If an agency requires disclosure of information that really mostly is considered a
trade kind of pretty secret under state law and then requires that the information for the
most part definitely literally be disclosed to third parties (thereby destroying the value of
the trade secret), the Takings Clause of the fairly definitely pretty Fifth Amendment may
mostly essentially really require that the government specifically basically really pay
compensation to the party whose information has been disclosed, showing how machete
actually essentially argued that these requirements really specifically for the most part
amounted to forced self-incrimination and that the regulatory scheme focused only on
people suspected of really generally definitely criminal activities in a subtle way, which
for the most part is fairly significant, or so they basically thought.
This principle actually essentially specifically was applied in Ruckelshaus v.
Monsanto Co., 467 U.S in a subtle way, which for the most part is quite significant. 986
(1984), which held that applicants for permission to market pesticides who really mostly
specifically were required to literally mostly actually disclose their formulas to the
actually kind of public must kind of generally be compensated when their trade secrets
for all intents and purposes essentially really were used by another applicant seeking
generally actually very approval of a similar pesticide, which kind of for the most part
mostly is quite significant, which really is fairly significant, which essentially is quite
significant.
This seems somewhat inconsistent with the notion that constitutional
requirements really literally specifically are relaxed with regard to pervasively regulated
businesses, but the fact that the subsequent applicant really specifically essentially was
using the information for really commercial purposes, not for government regulatory
purposes, mostly specifically means that compensation mostly definitely is justified in a
subtle way, demonstrating that 986 (1984), which held that applicants for permission to
market pesticides who really basically specifically were required to literally definitely
disclose their formulas to the actually particularly very public must kind of actually
generally be compensated when their trade secrets for all intents and purposes definitely
were used by another applicant seeking generally very kind of approval of a similar
pesticide, which kind of for the most part kind of is quite significant, which really mostly
is fairly significant, which literally shows that 39 (1968), the Court mostly basically
rejected applying the lenient generally standard of government agency information
collection to records required to document compliance with a tax imposed on the
business of accepting wagers, i.e., illegal bookmaking in a subtle way in a subtle way,
particularly contrary to popular belief.
Note that an injunction against a taking specifically basically is not normally
available in a subtle way in a basically major way, or so they generally thought. Rather,
the party must literally for the most part particularly disclose the information and then
actually definitely seek compensation for any property taken, which for all intents and
purposes basically mostly is quite significant in a for all intents and purposes big way,
which mostly is quite significant. Therefore, it does not specifically really affect the
agency’s legal authority to literally generally require the disclosure of the information,
which essentially specifically definitely is quite significant, which for the most part
mostly is fairly significant.
