ch 37 business law
Public accountability
- a number of pieces of legislation make agencies more accountable through public scrutiny. -freedom of information act 1966 -government in the sunshine act 1976 (open meeting act -regulatory flexability act 1980 -small business regulatory enforcement fairness act 1996 60 day rule
investigation power includes:
-conduct inspections -issue subpoenas: subpoenas as testificandum requires testimony, subpoenas duces tecum requires production of documents. -issue search warrents.
state administrative agencies
-cooperation and conflicts between parallel federal and state agencies -application of the supremacy clause -states have their own agencies and mirror the federal governments. -fed passes act and state adds more to the act
agency powers: legislative control
-enacting and changing enabling legislation. -ability to restrict or expand agency power substantively -*determining funding for the agency* -help constituents deal with agencies -amending the Administrative Procedures Act (APA) -freezing agency enforcement efforts before they take effect. 60 day rule: passed in the 90s watch congress rules and regulations before put in register, sent to congress, 60 days to fail- pass resolution by both houses- freezes rule.
agency powers: executive control
-presidents power to appoint federal officers -presidents veto power
agency powers: judicial control
-the administrative procedures Act (APA) provides for judicial review of most agency actions -judicial review of agency action will frequently address whether the agency has acted beyond its authority or failed to discharge its responsibility
to check agency power when issuing subpoenas
1 the purpose of the investigation 2 the relevance of the information being sought 3 the specificity of the demand for testimony or documents 4 the burden of the demand on the party from whom the information is sought
Subpoenas
2 types: ad testicandum (to testify) and regular it is an order compelling a witness to appear at an agency hearing. Duces tectum (bring it with you) compels an individual/organization to hand over books, papers, records, or documents to the agency.
search warrants
4th protects unreasonable searches and seizures by a physical search for evidence must be conducted under the authority of a search warrant. warrants are not required for highly regulated industries- liquor, hazardous operations, coal mines, guns.
freedom of information act 1966
FOIA requires government to disclose certain records to any person on request, even if there is no reason. only need to contain reasonable description of information sought. can exempt records of national security, personal or confidential
delegation of powers for agencies
Federal administrative agencies may exercise only those powers that congress has delegated to them in enabling legislation
small business regulatory enforcement fairness act
SBREFA- allows congress to review new federal regulations for at least 60 days before they take effect. time gives opponents of rules to resent arguments to congress. also authorizes courtd to enforce the act- ensures federal agencies consider ways to reduce economic impact of regulations on small businesses. agencies are required to prepare guides that explain how small businesses can comply with federal regulations
administrative agency
a federal or state government agency established to perform a specific function
notice-and-comment rulemaking
a procedure in agency rulemaking that requires notice, opportunity for comment, and a published draft of the final rule. 3 steps: notice of the proposed rulemaking a comment period a final rule
adjudication-book
a proceeding in which a administrative law judge hears and decides issues that arise when a administrative agency charges a person or a firm with an agency violation. the resolution of the dispute through a hearing conducted by the agency.
Final rule
after comment period. drafts final rule and publishes in the Federal Register. must contain "concise general statement of basis and purpose" that describes reasoning of rule. cant be changed too radically or they will need to provide another comment period. have binding legal as legislation- referred to as legislative rules.
2nd type of agency independent regulatory
agencies outside the major executive departments such as the Federal Aviation Administration of the Federal Communications commission
legislative rule
an administrative agency rule that carries the same weight as a congressionally enacted statute
interpretive rule
an administrative agency rule that explains how the agency interprets and intends to apply the statutes it enforces.
initial order
an agency's decision in a matter other than a rulemaking. an administrative law judge's initial order becomes final unless it is appealed
1st type of agency executive agencies:
cabinet-level of the Executive branch and their sub-departments
regulatory flexibility act
concern over the effect of regulation on the efficiency of business- smaller ones. when a new regulation will have significant impact upon a substantial number of small entities- the agency must conduct regulatory flexibility analysis. must measure the cost the rule would impose on small businesses- must be consider less burdensome alternatives. must alert small businesses of forthcoming regulations. relived small businesses of record keeping burdens- hazardous waste management.
notice of proposed rulemaking
create a new rule. they publish a notice of teh proposed rulemaking proceedings in the Federal Register. states where and when proceedings will be held, agencies legal authority for the rule (usually enabling legislation) and terms or subject matter of proposed rule
comment period
following notice. allow time for anyone to comment on the rule. purpose is to give interested parties the opportunity to express their views on the proposed rule in an effort to influence agency policy. must respond to "significant" comments that bear directly on the proposed rule. responds by either modifying its final rule of explaining in statement accompanying the final rule why they didn't make changes.
agency orders
following the hearing the ALJ renders an initial order/decision. either party can appeal to the board/commission that governs the agency, then can appeal to a federal court of appeals. if no one appeals the decision becomes final order.
negotiated settlements
from simple conversation to series of informal conferences. purpose is to rectify the problem to the agencies satisfaction and eliminate need for additional proceedings. option for firms for 2 reasons- avoid appearing uncooperative to avoid expense involved in formal adjudication now and appeals later. option for agencies to conserve their own resources & avoid formal actions
formal complaints
if settlement not made agency issues formal complaint against violator. public document. press release may be released. the person charged answers by filing an answer to the allegations. agency adjudication invloves hearing before an ALJ. under the APA before the hearing agency must issue notice includes facts and law on which the case is based, legal authority for the hearing, and its time and place
enabling legislation
is a law passed by congress to specify the name, purposes, functions, and powers of an administrative agency ex: Federal Trade Commission. made of experts.
administrative law:
is the rules, orders, and decisions of federal, state, and local government agencies established to perform a specific function
purpose of investigation:
is to ensure that the rule issued is based on a consideration of relevant factors rather than being arbitrary (random choice) and capricious (sudden and unaccountable changes of mood or behavior).
inspections:
on-site. office, factory, other business facility. in order to obtain evidence needed to prove regulatory violation or to place a formal hearing to show the need to correct or prevent an undesirable condition. cover wide range of activities- safety inspections of underground coal mines, commercial equipment checks, environmental monitoring of factory emissions. maybe asked to submit certain documents or records to the agency for examination. usually let them inspect to keep good relationship, when unreasonable- maybe detrimental then the agency resorts to search warrant
Administrative Law Judge (ALJ)
one who presides over an administrative agency hearing and has the power to administer oaths, take testimony, rule on questions of evidence, and make determinations of fact
government in the sunshine act
open meeting law 1976. every portion of every meeting of an agency to be open to public observation. public provided with adequate advance notice of scheduled meetings and agenda. closed meetings permitted when: -the subject of the meeting concerns accusing any person of a crime -open meetings would frustrate implementation of future agency actions -the subject of the meeting involves matters relating to future litigation or rulemaking
administrative process: rulemaking
rulemaking is the formulation of new regulation notice and comment rulemaking involves three steps: notice of the proposed rulemaking-NPRM comment period the final rule- published in federal register then in the code of the federal regulations
delegation doctrine
section of the Constitution are interpreted by the courts as granting Congress the power to establish administrative agencies 4th branch of govenment
state enabling
similar to federal but state legislature create state administrative agencies. mirror federal ones. state can have more specific regulations but can not subtract.
rulemaking
the actions of administrative agencies when formally adopting new regulations or amending old ones
administrative process: adjudication
the law provides a mechanism for administrative adjudication of suspected rule violations: negotiated settlements, formal complaints, hearing before administrative law judge (ALJ), agency orders/ decisions. means to legally render a decision in a dispute.
administrative process
the procedure use by administrative agencies in the administration of law
