Administrative Agency Essay
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Agency that controls the regulations and why it interest me
The law regards to the installation, maintenance and servicing of ignition interlock device. The regulation is controlled by the Bureau of Automotive Repairs, California (BAR). Pursuant to the provisions of the Assembly Bill 2040, BAR is mandated to regulate manufacturers and automotive repair dealers and establish standards for ignition interlock devices’ installation (Bar.ca.gov, 2015).
I own a business dealing in the installation of ignition interlock devices hence this agency and the proposed change interests me. Under the current regulations, my business is required to have a license from BAR and another one from the Bureau of Electronic Appliance and Repair, Home Furnishings and Thermal Insulation’s (BEARHFTI). If the proposed changes are approved, my business will be able to operate with only one license thereby reducing the legal costs of running the enterprise. This will have a positive impact on the profitability of my business. However, it is likely to result in the growth of firms providing the same services. Other businesses will easily enter the market since BEARHFTI licensees will also be allowed to provide ignition interlock device services (Bar.ca.gov, 2015). This will increase competition that may reduce the revenue for my business.
2. Description of the proposed change
The proposed change seeks an amendment to the scope of BAR services by adding the terms ‘service’ and ‘maintenance’ to section 3363.4 of the California Code of Regulations. In addition, the amendment also requires dealers in automotive repair to adhere to acceptable trade standards. The dealers will also bear the responsibility for ensuring that the device and the vehicle function properly after the installation, maintenance, and servicing (Bar.ca.gov, 2015). Dealers in automotive repair will also be required to have on hand device-specific and vehicle-specific equipment that have been identified by the manufacturers as necessary. Businesses are, therefore, required to get rid of outdated tools and equipment and adhere to manufacturer-specific requirements.
It also seeks to clarify the regulatory conflict between BEARHFTI and BAR by amending section 3363.3 of the California Code of Regulations. It prescribes the jurisdiction of the two regulatory agencies (Bar.ca.gov, 2015). It also allows BEARHFTI to take on regulations conforming to the act that sets the jurisdiction of BEARHFTI over dealers of electronics and appliance services that work on ignition interlock devices.
3. Public comment
This proposed change is timely and is long overdue. Dealers in ignition interlock devices have been the victims of the regulatory conflict between the BAR and BEARHFTI. The proposed amendment clarifies the jurisdictions of the two bodies thereby eliminating the regulatory conflict. In addition, the requirement of dealers to use manufacture-specific tools will improve the quality of services thus enhancing the sectors’ reputation. Furthermore, dealers like my business will no longer be required to hold two licenses from BAR and BEARHFTI thus making it easier to do business (Bar.ca.gov, 2015). It will also be beneficial to the consumers if firms that hold BEARHFTI licenses are allowed to offer ignition interlock device services. Consumers will have more options, and it will increase competition which is suitable for the growth of the sector.
The above comment is aimed at convincing those changed with voting to approve or reject the changes to support the proposal. It is meant to show that the public is in support of the proposed amendments and that those with the authority should proceed with the proposed amendments. The comment will be responded to and included in the record of the proposed amendment by BAR if it is submitted before the deadline.
4. Deadline for submission of public comments
The deadline for the submission was on 18th March, 2014 at 5.00 pm (Bar.ca.gov, 2015).
5. a) Legal entitlement in the promulgation process
After submitting my comments, I will be legally entitled to challenge the validity of the proposed changes during the open comment period (Daly, 2012). The challenge must be on one of the five grounds outlined by the five theories of administrative regulation.
b) Theories of administrative regulation
If the proposal has been passed and I was against it, I will be permitted to challenge the new law in court. I would be entitled to this only if I had submitted by comments above before the deadline day. Firstly, I can challenge the regulation on grounds of non-compliance with Administrative Procedure requirements (Jennings, 2010). In this case, I can prove the agency did not give a notice of and publish the proposed change as well as failing to allow for public comments.
Secondly, I can base my suit on grounds that the regulation is unconstitutional. In this case, the law will be declared invalid if there is proof that it violates fundamentals constitutional provisions such as the bill of rights (Jennings, 2010).
The third theory is the theory of ultra-vires. The regulation can be set aside if it gives the Bureau powers beyond what it is mandated to do by the act that led to its formation (Daly, 2012). In addition, I can challenge the regulation on the basis of being arbitrary and capricious. This would succeed if the agency made the regulation informally without any evidence to support it.
The last theory I can use is the theory of substantial evidence. The regulation will be declared invalid if there is more evidence against it than in its support (Lubbers, 2011). The standard requires that regulations should be approved only when there is substantial evidence over and above the capricious requirement.
c) Best way to challenge the regulation
In this case, the most viable option will be to challenge the law on grounds of lack of substantive evidence. It is easier to prove this and that there exists more evidence against the law. The proposed change is not beyond the powers of the Department of Consumer Affairs hence grounds of ultra-vires will not be viable. In addition, the proposed amendments do not violate any laws and were made in accordance with the APA rules.
Bar.ca.gov,. (2015). Search Results - Organization. Retrieved 16 March 2015, from https://www.bar.ca.gov/serp.html?q=installation+of+ignition+interlock+devices+&cx=001779225245372747843%3Anlecm77vlxc&cof=FORID%3A10&ie=UTF-8&nojs=1
Daly, P. (2012). A theory of deference in administrative law. Cambridge: Cambridge University Press.
Jennings, M. (2010). Business: Its Legal, Ethical, and Global Environment (9th ed.). New York: Cengage Learning.
Lubbers, J. (2011). Developments in administrative law and regulatory practice, 2009-2010. Chicago, Ill.: Section of Administrative Law and Regulatory Practice, American Bar Association.
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