Business Law Chapter 43

steps involved in notice-and-comment rulemaking.

notice of proposed rulemaking comment period final rule

Charges that an individual or a firm has violated an administrative rule are first brought before

administrative law judge

Congress can abolish an

agency all together if it wishes.

Executive agencies are often referred to as the

4th branch of government

The law that specifies the procedural requirements that all federal agencies must follow in their rulemaking, adjudication, and other functions is the

Administrative Procedure Act

William wants to obtain information from the Securities and Exchange Commission regarding the number of active cases related to insider trading. To request this information, he would need to fill which of the following with the SEC:

Freedom of Information Act request.

Who are the members of juries in administrative hearings?

No one, because there are no juries.

What happens when no party appeals an adjudication?

The ALJ's decision becomes the final order of the agency

The New Chevron Standard for Courts When Reviewing Agency Interpretations of Law, which Involves the Following Two Questions:

a. did congress directly address the issue in dispute to the statute, stat. language prevails b. if the statute is silent, is the agency's interpretation reasonable, court should uphold agency's interpretation

The Arbitrary and Capricious Standard Includes Factors, Such as Whether the Agency Has Done Any of the Following:

a. failed to provide explanation for decision b. changed prior policy without justification c. considered legally inappropriate factors d. failed to consider a relevant fact e. made a decision contrary to evidence

To Determine Whether an Agency Is Abusing Its Discretion in Pursuing Information, a Court May Consider Such Factors as the Following:

a. purpose b. relevance c. specificity of demand for docs d. burden of demand on the party

Agencies Can Conduct Warrantless Searches in the Following Situations:

a. searches in highly regulated areas b. certain types of hazardous operations c. emergency situation

Check My Work AT&T wants to obtain additional rights to operate within the 700 MHz spectrum in the U.S. The Federal Communications Commission (FCC) has rules and regulations that govern wireless spectrum auction. The FCC is

administrative agency

One important difference between formal litigation in a court and an administrative hearing before an administrative law judge (ALJ) is that:

an administrative hearing can admit hearsay as evidence.

BP violated the Clean Air Act by discharging pollutants from one of its refineries and was unable to reach a settlement with the EPA regarding a violation of the law. The EPA plans to go forward with a trial on this matter which will be hear by

an administrative law judge

Courts generally hold that Article I of the U.S. Constitution is the

basis for administrative law

All administrative agencies taken together are considered the

bureaucracy of the federal government.

Federal administrative agencies are created:

by enabling legislation passed by Congress

The EPA wants to ensure that Delmar Oil Company is in compliance with federal environmental rules regarding cleanup of oil and gasoline spills. In order to do so, it:

can conduct an on-site inspection

The Bureau of Alcohol, Tobacco, and Firearms suspects that Pawn Shoppe, Inc. is violating firearms regulations. To obtain evidence, the bureau:

can search the premises and seize evidence without a search warrant.

An independent regulatory agency is usually run by

commission or board

The judicial branch exercises

control over agency powers through the courts' review of agency actions.

Check My Work UsAgainstThem, a nonprofit environmental group, is contesting the EPA's interpretation of a rule that has allowed a refinery to offset an increase in emissions relating to one part of the refinery by reducing emissions in another part of the refinery. In challenging the EPA's interpretation, a court will likely

defer to the agency's interpretation.

Congress passed the Securities Exchange Act of 1934, which created the Securities Exchange Commission. This legislation, which created an independent regulator agency, is known as

enabling legislation.

The delegation doctrine holds that Article I grants Congress the authority to delegate some of its powers by

establishing administrative agencies.

Private communications between the ALJ and any party to the agency proceedings are known as

ex parte communications

two basic types of administrative agencies

executive agencies and independent regulatory agencies

The main difference between independent regulatory agencies and executive agencies is that:

executive agencies are subject to the authority of the president to a greater degree than are independent regulatory agencies.

After the Chevron case, all of those involved in rulemaking by administrative agencies accepted that decision without discussion t or f

false

All cabinet departments of the executive branch are included in independent regulatory agencies. t or f

false

Before any on-site investigation by a federal administrative agency, most businesses resist those inspections by going to an appeals court t or f

false

Every administrative hearing procedure must be exactly the same as legislated by Congress. t or f

false

The administrative law judge and the agency's investigative and prosecutorial staff are basically one integrated unit. t or f

false

The major function of today's federal agencies is adjudication. t or f

false

The president has the power to appoint

federal officers and also the power to veto enabling legislation.

Congress can limit the power of federal agencies through its

funding authority.

Does an agency involved in rulemaking need to respond to all comments during the comment period

no, agency can respond to an comment that are directly about the proposed rule

Following a hearing, an administrative law judge (ALJ) first issues a

initial order

The FDA is investigating Shari's Cosmetics for possible violation of purity regulations. The FDA wants Yasmin, their lead chemist for the company, to testify at an administrative hearing. Yasmin refuses, so the FDA

issues a subpoena ad testificandum

The EPA passes a proposed a rule change to the Clean Air Act related to the discharge of emissions by factories. The EPA's action would be considered arbitrary and capricious for all of the following reasons except:

it failed to provided the required time for notice and comment.

The EPA conducts meetings to discuss the possibility of creating additional regulations within the next five years. Under the Government in the Sunshine Act, the meetings

may be closed to the public

The Freedom of Information Act exempts records pertaining to

national security

What happens when substantial changes occur to a proposed rule because of public comments?

new proposal and new opportunity for comments are required

When an agency formally creates a new rule, its first step is to

publish a notice of the proposed rulemaking proceeding in the Federal Register

three agencies' powers.

rule making enforcement adjudication

two basic types of subpoenas.

subpoena ad testificandum subpoena duces tecum

Another way to describe the legislative rules that agencies create is that they are

substantive rules

The EPA and Zenith Dry Cleaners are negotiating a settlement for alleged violations of federal emissions standards. The EPA issues subpoenas duces tecum for all of Zenith's financial records for the past two years and orders Zenith to pay the costs. Zenith challenges the subpoena on the basis that:

the agency's request is unrelated to the emission violation and instead is aimed at pressuring Zenith into a settlement.

If an agency failed to follow proper rulemaking procedures when it issued the final rule, the rule may not be binding. t or f

true

The Federal Register is a daily publication of the executive branch that prints (and offers online) government orders, rules, comments, and regulations. t or f

true

When a negotiated settlement cannot be reached, the agency may issue a formal complaint against the suspected violator. t or f

true

When regulated groups oppose a rule adopted by an agency, they can bring a lawsuit arguing that the rule was not authorized by the enabling statute. t or f

true