Business Law Ch6

A government body charged with administering and implementing legislation.

A department, independent establishment, administration, authority, board, or bureau

Federal and State

They are created to carry out general policies specified by Congress

Law governing administrative agencies

Securities Exchange Commission (SEC), Consumer Product Safety Commission (CPSC), Federal Drug Administration (FDA)

They have jurisdiction over areas of law affecting business, such as workers' compensation claims, real estate licensing, and unemployment compensation

Legislative, Executive and Judicial

Appointed by the president with the consent of Congress

Make rules, conduct inspections to see that the rules have been or are being obeyed, and sit in judgment to determine whether there have been violations of their rules

Open Records, Open Meetings, and Public Announcement of agency guidelines

Actions and activities of most federal agencies that are not otherwise regulated; federal law that establishes the operating rules for administrative agencies

Federal law permitting citizens to request documents and records from administrative agencies --- and unless an exemption is clearly given, the info in question is subject to public inspection

To ensure that government activities be opened to the sharp eye of public scrutiny

Invasion of Privacy

They have to prove that the exemption applies to that particular request

Commercial or Financial Information not ordinarily made public by the person or company that supplies the info to the agency as part of the agency's enforcement role.

To prevent individuals and companies from obtaining info that is not necessary to their legitimate interests and might harm the person or company whose information is sought.

Law that requires advance notice of agency meeting and public access; requires that most meetings of major administrative agencies to be open to the public

To enable the public to know what actions agencies are taking and to prevent administrative misconduct by having open meetings and public scrutiny.

Ones that involve "deliberations" of the agency or those that "result in the joint conduct or disposition of official agency business

It requires that each agency publish the rules, principles, and procedures that it follows

They have the power to make laws and do so by promulgating regulations with public input

With the scope of it's authority in the statute that created it or assigned a responsibility to it

The formulation of policy and the making of rules to fill any gap left by Congress

Congressional enactment (statute)

Interpret or clarify the law

When lawmakers intentionally leave the matters for them, or when the problem had been unforeseen

Before an agency can begin rulemaking proceedings, it must be given jurisdiction by congressional enactment in the form of a statute

Research a problem or issue; determine the cost and benefit of the problems; identify issues and solutions

The agency or someone else who is hired by the agency

The agency proposes regulations which must be published

It provides that proposed administrative regulation be published in the Federal Register; it's purpose is to provide publicity for all regulations

A government publication published five days a week that lists all administrative regulations, all presidential proclamations and executive orders, and other documents and classes of documents that the president or congress directs to be published

It provides that an administrative regulation in the federal register is public notice of the contents of the regulation to persons subject to it or affected by it

(passed during Reagan Administration) In addition to the Federal Register Act, it is required that all proposed rules be published in the trade journals of those trades that will be affected by the proposed rules

A "regulatory flexibility analysis" that describes the impact of the proposed rule on small entities

To be certain that small businesses were aware of proposed regulatory rules and their cost impact

The public has the opportunity to provide input on the proposed rules

A period of 30 days in which the public can respond to proposed regulations (with certain emergency exceptions) which can consist of letters written by those affected

An agency can decide to pass (promulgate), withdraw, or modify the rule based on comments

The power to execute the law and to bring proceedings against violators

The power to investigate, to require persons as witnesses, to require witnesses to produce relevant papers and records or to bring proceedings against those who violate the law

A subpoena - to obtain information reasonably required for by the investigation

The constitutional protections afforded to individuals and businesses

Unreasonable Searches and Seizures

When the danger of concealment is great, a warrantless search can be made of the premises of a highly regulated business, such as one selling liquor or firearms or when violation of the law is dangerous to health and safety

When the subject matter can be seen from a public place (seen through an open window, or seen from helicopters or airplanes)

The constitutional guarantee against unreasonable searches and seizures does not afford much protection for papers and records being investigated by an agency

including an agency's regulations and orders?, An agency may require proof of compliance

Examination of either a building or a plant, or of witnesses or documents

Once the investigation of an agency reveals a potential violation of law, an agency conducts hearings on violations

An agency, although not a court by law, may be given power to sit as a court and to determine whether any violations of the law or of agency regulations have occurred

A Private Individual, company or an agency

what can the accused do?, They have the opportunity to file an answer on the allegations

what does the agency do?, Has a hearing, makes a decision and enters an order either dismissing the complaint or directing remedies or resolutions

They must give notice and hold a hearing at which all persons affected may be present

There is no right of trial by jury before an agency; an agency hearing is ordinarily not subject to the rules of evidence; an agency may be authorized to make an initial determination without holding a hearing (if challenged, agency holds a hearing);

for certain positions, mainly those concerning an individual as opposed to a group, an agency must give a hearing before making a decision

Practical devices to cut across the procedures already outlined; Informal Settlements: negotiated disposition of a matter before an administrative agency, generally without public sanctions; Consent Decrees: informal settlements of enforcement actions brought by agencies

An alleged wrongdoer informally notified that a complaint has been made is willing to change

Files an opinion that sets forth the findings of facts and reasons on which the decision is based

So that the parties and the court (in the event of an appeal) will understand the agency's action and reasoning

Agencies have the power to impose penalties and to issue orders that are binding on a regulated party unless an appeal is taken to court which reverses the administrative decision

Order issued by a court or agency to stop a practice that it decides is improper

Requirement that an agency make its final decision before the parties can go to court; no appeal is possible until the agency has acted on the party's matter before it.

Available remedies that provide no genuine opportunity for adequate relief; Irreparable injury that could occur if immediate judicial relief is not provided; an appeal to the agency that would be useless; a substantial constitutional question that the plaintiff has raised

If a decision of an agency is made without following their procedures specified by law then the decision will be set aside and the matter will be sent back to the agency to proceed according to the required law

When a decision an agency makes is a question of law, the court on appeal will reverse the agency if the court disagrees with the legal interpretation

In such cases, a court accepts an agency's conclusion if it is supported by substantial evidence; so long as reasonable minds could reach the same conclusions after considering all evidence

Reverse the decision merely because the court would have made a different decision

An appellate court will sustain the administrative action if substantial evidence supports it

Give reasons; because otherwise a reviewing court cannot tell whether the agency changed its interpretation of the law for a valid reason or has made a mistake

It condemns it arbitrary and requires reversal

By increasing its operating costs or by making a decision that later is shown to be harmful to the economy

It is not liable when it has acted in good faith in the exercise of discretionary powers