Business Law: Chapter 5 Administrative Law

Administrative Procedures Act (APA)

requires agencies to follow certain uniform procedures in making rules; the APA includes the freedom of information act, the federal privacy act and the government in the sunshine act among others.

Proposed regulations

Proposed rules or rule changes I the Federal register

Enabling Act { part of Formal Rulemaking}

gives the agency the board power to deal with the issues the act was passed to address.

Administrative Agency

is best defined by what it is not: its not a legislative or judicial body. An AA is a statutory creation within the executive branch with the power to make, interpret, and enforce laws states also have AA that are responsible for such things as the licensing of professions and occupations. ex: real estate agents, doctors, accountants and etc. congress creates federal agencies; state legislatures create state agencies and city government create their cities' administrative agencies. The Securities and Exchange Commission (SEC) consists of five commissioners and six divisions and eleven regional offices.

Federal Register Act (FRA)

is not part of the APA it created the Federal Register System, which oversees publications of federal agency information this system provides the means for Sunshines Act notices and publication of agency rules and procedures. 3 publications make up the federal Register System: U.S Government Manual: this publication is reprinted each year and lists all federal agencies and their regional offices along with addresses. Code of Federal Regulations: contains all of the regulations of all federal agencies. Federal Register : is published every government working day and contains proposed regulations notices of meetings and notices of hearings on proposed regulations and the final version of amended or new regulations. { provides daily update on changes in the regulations}

Government in the Sunshine Act

is often called an Open meeting Law( law (either state or federal) requiring notices to be give of meetings of agency heads and be open to public) ; federal trade commission (FTC) meet, that meeting must be public and held only after there has been prior notice. staff members can hold meetings in private without giving notice. meetings on law enforcement investigations are also exempt.

FOIA Request

unpublished agency information can be obtained by requesting. ; some information is exempt from FOIA Request; nine categories of exemptions including requests that would reveal trade secrets or information about government workers personnel records.

Formal Rulemaking

process for developing rule in an administrative agency; involves hearings and public comment periods.

Federal Privacy Act (FPA)

prohibits federal agencies from communicating any records to another agency or person without first obtaining that persons consent; FPA protects all records the agency has about individuals including medical and employment histories. ; law enforcement agencies are exempt from the FPA. employees oft the SEC ( responsible for enforcement of federal securities la) have constant access ro information about directors stock sales so that they can monitor them for insider trading.

Roles of Administrative Agencies

(a) specialization: AA are specialists in their particular area of law and agencies need this type of expertise because both the laws they enforce and the areas the regulate are complex. (b) Due Process: constitutional protection ensuring notice and a fair trial or hearing in all judicial proceedings; AA provide the opportunity to be heard, a form of due process before property, rights or income are taken; court ruled that before a benefit or property right ( such as aid to dependent children or a business license) could be taken away, administrative agencies must provide citizens and businesses with a process for seeing the evidence against them and presenting their side of the story. (c) social goals: some experts see AA as a means for accomplishing social goals that might otherwise be delayed or debated. (d) protection for small business: an individual or competitor who finds a false advertisement in a newspaper would probably not take the time or effort to bring a private suit to collect damages for the false advertisement. but an agency created oversee truth in advertising would undertake routine enforcement against such advertisements, affording small business competitors and consumers the protection and rights they might not otherwise have. (e) faster relief: AA help expedite investigations and enforcement and penalties for violations; AA serve as review boards for granting licenses; license and permit applications can be processed far more quickly that they could be handled legislatively.

What to do with the proposed Regulations

3 choices: #1 smiply to adopt the rules #2 modify the proposed rules and go through the process of public comment again. if the modification is minor , the APA allows the agency to adopt a modified version of the rule without going through the public comment period again. #3 withdraw the rules; guidelines on religious harassment in the workplace business comments and concerns about those guidelines resulted in the U.S. Senate passing a resolution 94-0 urging the EEOC to drop the guidelines. more than 100,000 letters of protect; banning such personal expression a form of speech would result in a flood of first amendment suit.

Business Rights in Agency Enforcement Actions

AA not only make the rules but also enforce them, the agencies are also responsible for adjudicating disputes over the scope or interpretation of the rule Licensing and Inspections: many agencies issue licenses or permits as a way to enforce the law; the idea behind the licensing and permits method of enforcement is to curtail illegal activity up front and to have records in case problems arise. agencies also have the authority to conduct inspections such as when agency responsible for restaurant licenses inspects restaurant facilities to check for health code violations. a business can refuse an inspection but an agency can obtain a warrant and return for a mandatory inspection. enforcement: complaint: describe when and what the company did and why its a violation. injections : which s a court order that prohibits specifically described conduct. Consent Decrees: which is like a solo contender plea in the criminal system: the party does not admit or deny a violation but simply negotiates a settlement with the AA, the consent decree is a contract between the charged part and the regulatory agency. Hearing: if the parties cannot reach an agreement through a consent decree, the questions of violations and penalties will go to an administrative hearing, which is quite different from the litigation described in chapter 3. Administrative Law Judge (ALJ) at the federal level Hearing examiners or hearing officer: state- level agencies intervenors: file motions to intervene and are usually permitted to do so at any time before the start of a hearing. : person permitted to participate even tho he or she is not the party in the case.

Administrative Law of Appeals

ALJ has issued a decisions the decision can be appealed. appeal of an ALJ decision is not to a court but to the agency itself. those appealing an ALJ decision must go through all the reused lines of authority in the angry before they can go to the court this process is known as: exhausting administrative remedies. if an appeal is made before administrative remedies are exhausted the court will reject the case on those grounds.

Ultra Vires

a latin term meaning " beyond the powers" regulations nis one that goes beyond the authority given the agency in its enabling act. Ex: Massachusetts bs EPA case clear air act, greenhouse gas and et.

Agency research of the problem

agencies must establish a purpose for any new rules proposed and present evidence that the regulation will accomplish the purpose. agency staff can perform the study, or the agency can hire outside experts to conduct it. regulations will be cost effective and the problems the regulations is trying to correct will be corrected as well as the costs if those problems are not corrected.

Freedom of Information Act (FOIA)

allows citizens access to certain agency information and requires that the agencies publicly disclose their procedures and decisions; agencies also must publish their rules, regulations, procedures, policy statements and reports . ex: sea world trainers family didn't want their daughters death pictures to be released to public so they brought a suit to stop the public release however theres no such exception under the FOIA so the OSHA related the pictures.

Courts and Legislative Challenges to Proposed RTules

an administrative rule can be challenged on several different grounds. to challenge the rule as arbitrary capricious an abuse of discretion or in violation of some other law. a Second theory for challenging an agency regulation is that the agency did not comply with the APA requirements of notice,publication and public comment or input. another basis for challenging a regulation is that the regulation is unconstitutional. search records or that impose discriminatory rewuizemens for licensing professionals .

Reverse FOIA Suit

bidding company could bring suit to stop the disclosure. prevents government agencies from releasing the names and addresses of gun owners in the state, the effect of the release of that information was that certain police officers home addresses became known to criminals who then threatened the officers and also caused homes that didn't have firearms to become targets for robberies and burglaries.

Arbitrary and capricious

standard for challenging administrative agency rules; used to show that decisions or rules were not based on sufficient facts. example: the HOrnbeck OFFSHORE V. SALAZAR case bp drilling and oil and etc

informal rule making

the same as that for formal rule making, with the exception that no public hearings are held on the rule, the public comes in the form of comments.

Public comment Period

the time during which the angry accepts comments on the proposed rule is this. Public comment period cannot be fewer than 30 days but most comment periods are much longer.

Regulatory Flexibility Act

to publish a notice in trade and industry publications of those businesses that will be affected by the rule.