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? Submit a copy of the proposed regulation along with your responses to these five questions. The proposed regulation can be submitted as either a separate Word document (.doc) or Adobe file (.pdf). This means you will submit two attachments to the Week 2 Dropbox: (1) a Word doc with the questions and your answers and (2) a copy of the proposed regulation you used for this assignment. (10 points)
Agency: Federal Railroad Administration (FRA)
Parent Agency: Department of Transportation (DOT)
I’m a project manager and I work in construction and this regulation affects me directly because on some of the projects I’m working on, I deal with railroad employees.
This regulation promotes for a safer work environment.
2. Describe the proposal/change. (10 points)
FRA is establishing minimum training standards for all safety-related railroad employees, as required by the Rail Safety Improvement Act of 2008 (RSIA). The final rule requires each railroad or contractor that employs one or more safety-related railroad employee to develop and submit a training program to FRA for approval and to designate the minimum training qualifications for each occupational category of employee. The rule also requires most employers to conduct periodic oversight of their own employees and annual written reviews of their training programs to close performance gaps. The rule also contains specific training and qualification requirements for operators of roadway maintenance machines that can hoist, lower, and horizontally move a suspended load. Finally, the rule clarifies the existing training requirements for railroad and contractor employees that perform brake system inspections, tests, or maintenance.
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’m in favor of the proposed regulation. With so many railroad accidents in the recent years, the public has lost their trust in the railroad transportation system. This regulation will enforce safety awareness among railroad employees. Also, this regulation will provide the FRA with better knowledge of the operational systems of the different agencies, which will give them the chance to see the faults and that will help enhance the various safety programs. The regulation will help the public regain trust and it will be beneficial for all the railroad employees as well and improve their work environment. Applying this regulation can prevent future fatalities.
With that being said, I wish that this regulation is applied as soon as possible.
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 02/10/2015
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.)
Department of Interior policy is, whenever practicable, to afford the public a meaningful opportunity to participate in the rulemaking process. The process of opening refuges is done in stages, with the fundamental work being performed on the ground at the refuge and in the community where the program is administered. In these stages, the public is given other opportunities to comment. Once the deadline date for comments has expired, the document will be published in the Federal Register for additional comment, commonly for a 30-day comment period. Those parties who made comments on the rule(s) during the proposal stage can challenge the validity of the rules in court. An administrative rule can be challenged on several different grounds. The first ground on which to challenge an agency rule is to determine if that rule is arbitrary, capricious, an abuse of discretion, or in violation of some other law. This standard is generally applied to formal rulemaking and simply requires the agency to show evidence to support the proposed rule. After the comment period is over, the agency has three choices about what to do with the proposed rule(s). The first choice is simply to adopt the rules. The second choice is to modify the proposed rules and go through the process of public comment again. If the modification is minor, however, the APA (Administrative Procedure Act) allows the agency to adopt a modified version of the rule without going through the public comment period again. The final choice of the proposing agency is to withdraw the rule.
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.
1. The first ground on which to challenge an agency rule is that it is arbitrary, capricious, an abuse of discretion, or in violation of some other law. This standard is generally applied to informal rulemaking and simply requires the agency to show evidence to support the proposed rule. Without such evidence, the rule can be held arbitrary and capricious.
2. A second theory for challenging an agency’s regulation is that the regulation is unsupported by substantial evidence. This substantial evidence test is applied in the review of formal and hybrid rulemaking. Where the arbitrary and capricious standard simply requires some proof or basis for the regulation, substantial evidence requires that more convincing evidence exist in support of the regulation than against it.
3. A third ground on which to challenge an agency’s regulation involves the rule that a regulation can be set aside if the agency did not apply with the APA requirements of notice, publication, and public comment or input. The procedures for rulemaking must be followed in order for the regulatory process and resulting rules to be valid. An agency that seeks public comment for the purposes of drafting legislation cannot then turn the legislation into rules after the comment period.
4. Another basis for challenging a regulation is that the regulation is unconstitutional. Many challenges based on constitutional grounds deal with regulations that give an agency authority to search records or that impose discriminatory requirements for licensed professionals.
5. Another theory for challenging a regulation in court is ultra vires, a Latin term meaning “beyond its powers.” An ultra vires regulation is one that goes beyond the authority given to the agency in its enabling act. Although most agencies stay clearly within their authority, if an agency tries to change the substance and purpose of the enabling through regulation, the regulations would be ultra vires.
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?
I would choose the fifth regulation which will argue that the regulation goes beyond the authority given to agency. The regulations proposes that each railroad or contractor that employs one or more safety-related railroad employee to develop and submit a training program to FRA for approval. So now the agency is asking for direct oversight on the contractors working for the agencies it oversees. Projects durations will be multiplied just to accommodate this process.