Week 2 Homework – GM520.
1. State the administrative agency which controls the regulation. Explain why this agency and your proposed regulation interests you (briefly). Will this proposed regulation affect you or the business in which you are working? If so, how?
Department of Agriculture Agricultural Marketing Services The proposal interests me because it deals with businesses who voluntary want their plants inspected against USDA guidelines for diaries. This is interesting because I would think each dairy would be required to be inspected and not voluntary. Being that the fee may rise and the inspection is voluntary then most likely those businesses will pass the cost onto consumers. This could potentially affect my clients who have children and need dairy products to meet their babies’ daily needs. I hope to safely assume all dairies would want to be inspected and graded according to USDA guidelines in the event something of bad product being introduced to the public.
2. Describe the proposal/change. The proposal increases the fee for business who wants their dairy plants inspected against USDA inspections and grading services. These fees were last adjusted in 2006. According to the regulation, “despite the adoption of technologies that have improved services, additional changes in operations that enhanced efficiencies, and reduced employee numbers, increases in salaries, technology investments, and general inflation have more than offset savings resulting in the need to increase fees.” The proposed increase will be 15 percent for fiscal year 2013 and 5 percent for fiscal year 2014. The two-part incremental fee increase consisting of 15 percent begins in February 2013 and the additional 5 percent in October 2013. According to the proposal the increase would be $ 0.0004 per pound of graded products for business who used the services. The Department has restructured in an effort of managing workforce. Services are rendered rates per hour, resident status, night status and excess of 8 hours services. This increase is needed to avoid a reduction in the services offered that aid the dairy industry in effectively marketing their products.

3. Write the public comment which you would submit to this proposal. If the proposed regulation deadline has already passed, write the comment you would have submitted. Explain briefly what you wish to accomplish with your comment. (10 points)

I agree with the increase in fees being that the last increase was in 2006 and the Department current revenue is not allowing them to cover their current financial obligations. Being that the program is voluntary those who want to produce a grade “A” quality product for citizens will pay the increase as the service is beneficial. Even though the price increase is supposedly small I do have the concern for the increase in fee being handed off to the consumers of the products. I do wish that the second fee increase not occur until February 2014 for fiscal year 2014.
4. Provide the "deadline" by which the public comment must be made. (If the date has already passed, please provide when the deadline was). (5 points)
This expires on February 19, 2013
5. a. Once you have submitted your comment, what will you be legally entitled to do later in the promulgation process (if you should choose to do so)? (See the textbook's discussion of the Administrative Procedure Act.) b. If the proposal passes, identify and explain the five legal theories you could use in an attempt to have the regulation declared invalid and overturned in court. c. Which of these challenges would be the best way to challenge the regulation you selected for this assignment if you wanted to have the regulation overturned and why? Answer all of these questions for #5 even if you are in favor of your proposed regulation. The response to question 5 should be a minimum of 2-3 paragraphs long. (15 points)

Once a comment is submitted a promulgation process is then filed in order to overturn the regulation. In our textbook it states that the Administrative Procedures Act “requires agencies to follow certain uniform procedures in making rules.” The first process needs to be done within 15 days of the proposed regulations. The public comment period cannot be less than thirty days and most agencies make the period much longer. This must be submitted during the confirmed comment period in order to legally challenge the legality of the federal regulation. Businesses can also submit and provide information for proposals and concerns. If a person or business wants to challenge a federal regulation in court they must participate in the comment period and state their concerns in a comment.

If the proposal passes if I want to challenge or have the regulations declared invalid I would have to follow up with one of the following five legal theories. The first legal theory is arbitrary, capricious, and abuse of discretion, or in violation of some other law. This is applied to informal rule making and the agency has to show evidence to support their proposal. If there is no evidence the rule can be held in arbitrary and capricious. The second legal theory is substantial evidence challenge. In this theory the proposal has no supported substantial evidence for the rule. The difference between this theory and the first theory is that the first theory of arbitrary and capricious one just needs proof and this theory you need actual evidence to support of the regulation then against it. The third legal theory to challenge as agency regulations deals with the rule that the regulations can be set aside because the agency did not follow American Procedure Act requirements for notice, publication and public input (comment). The fourth legal theory challenges regulations based on if it is constitutional. Most regulations that get challenged based on constitution deals with a regulation requesting an agency authority to search for something or impose some type of discrimination requirement. The fifth legal theory is the ultra vires theory. Ultra vires means “beyond it powers” in Latin. Ultra vires means a regulation would be going beyond that agency powers or authority. An agency can’t pass a regulation beyond their authority.

I think the best way the regulations could be challenged would be through the second legal theory of substantial evidence challenge. According to the Agriculture Marketing Services, even though they have adopted new technologies and restructured the agency to be more efficient inflation has offset the agency savings resulting in a need for the agency to increase fees. By following the substantive challenge I would want the agency to show hard evidence of what new technology they have implemented in their services over the last 6 years. I would also want to see their restructure of the agency and when it occurred as well as evidence of salaries. Also the agency will need to give evidence of the agency spending over the last six years to show how why they are depleting their funds.