Week Two Homework Assignment
1. State the administrative agency which controls the regulation. Explain why this agency and your proposed regulation interest 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 Drop-box: (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)
The administrative agency I have chosen is the Federal Motor Carrier Safety Administration (FMCSA) and the proposed regulation is “Qualification of Drivers; Exemption Applications; Vision”. Although the proposed regulation does not affect the business I work for directly, it does however affect all motorists including myself using state highway everyday to commute. I selected this agency because it deals with the safety of commercial motor vehicles (CMV) and truck drivers. Like myself, there are many people out there who are usually afraid when driving passing these commercial motor vehicles and often worry about its safety. The proposed regulation is the most current one for the administration hence the main reason why I selected it, but it also interest me because am very curious as to the safety of commercial motor vehicles, and the qualification and medical test truck drivers must possess and pass in order to ensure the safety and comfort-ability of other motorist.
2. Describe the proposal/change. (10 points)
The proposal announces the FMCSA decision to renew the exemptions from the vision requirement in the Federal Motor Carrier Safety Regulations for 25 individuals. The exemption is only granted to CMVs drivers in interstate commerce, for a two year period. If granted, the exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.
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 am writing to support the renewal for the exemptions from the vision requirement in the Federal Motor Carrier Safety Regulations for the 25 individuals. After reading the entire proposed regulation, and the conditions that are required to extend the exemptions, I must say that the proposed regulation is consistent with the requirements at 49 U.S.C. 31136(e) and 31315. The entry conditions for the exemption are very satisfactory and are just as effective and efficient without the exemption for vision requirements.
Once each of the 25 applicants has satisfied the entry conditions for obtaining an exemption from the vision requirements, and has submitted evidence showing that the vision in the better eye continues to meet the requirement specified at 49 CFR 391.41(b)(10) and that the vision impairment is stable, then the exemption should be granted onto them. I do not know any of the 25 individuals requesting exemption; therefore I cannot personally comments on their efforts towards achieving satisfactory level of safety. However once renewal requirements are meet under the 49 U.S.C. 31136(e) and 31315, interested parties comments are evaluated, and there is adequate basis for predicting each driver's ability to continue to drive safely in interstate commerce, it is safe for me to say that the FMCSA intention to extend the exemption for each renewal applicant for a period of two years is likely to achieve a level of safety equal to that existing without the exemption, and should therefore be granted.
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)
July 18, 2012 11:59 PM ET
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.)
The Federal Motor Carrier Safety Administration (FMCSA) follows the Administrative Procedure Act (APA) formal rulemaking procedures when developing rules. This process allows the public a comment period where they can voice and submit their input in regards to their, concerns, and opinions on the proposed regulation before issuing any rule. There is a deadline for the public to enter their comments, and once that deadline has expired, the proposed rule is submitted in the federal register for additional comments which is of a thirty (30) day comment period.
Once my comment has been submitted for the proposed rule, and the regulation has not been withdrawn from the promulgation process, I am legally entitled to challenge that rule in court in the promulgation process if I choose to do so. This step is called the court and legislative challenges to the proposed regulation and is done in through promulgation process. According to our text book “Those parties who made comments on the rules during their proposal stage can challenge the validity of the rules in court” (Jennings 2012, pg. 194). Challenging an administrative rule can be done on several different grounds.
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.
The first ground on which an agency’s rule can be challenged 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 the evidence that support the proposed rule. Without such evidence, the rule can be held to be arbitrary and capricious. For example the Government Of The Province Of Manitoba, et al. v Ken Salazar, Secretary (2009), United States Department of the Interior, et al., Manitoba argued, inter alia, that Reclamation was arbitrary and capricious under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A).
The Northwest Area Water Supply Project (NAWS) with the joint venture of the governments of the United States and the State of North Dakota failed to take a hard look at the risks and consequences of transferring foreign biota from the Missouri River Basin to the Hudson Bay Basin. The Court ordered Reclamation to complete an EA that considers an integrated analysis of the possibility of leakage and the potential consequences of the failure to fully treat the Missouri River water at its source and further ordered Reclamation to revisit its finding of no significant impact.
Two bases someone who is impacted by this law could argue to have the law overturned are firstly that the regulation is arbitrary, capricious, an abuse of discretion, or in violation of some other law. The DNC would have to show the evidence that support the proposed rule. Without such evidence, the rule can be held to be arbitrary and capricious. Another bases that can be used to overturned the law is the substantial evidence standard. It is similar to the one the first one I just mention, but requires more convincing evidence that supports the regulation. A substantial evidence test is applied in the review of both the formal and hybrid rulemaking, and one can challenge the agency’s regulation if it is unsupported by substantial evidence. The arbitrary and capricious standard simply requires some proof or basis for the regulation, where more substantial evidence requires that more convincing evidence exist in support of the regulation than against it. The DNC would need to prove that there is a basis, and why it is important that the return must prove that they have paid at least 15% of their total income in taxes or they are not allowed to register to vote. They must prove the basis for that.

A second basis for challenging an agency’s regulation is the substantial evidence standard. This is similar to the first one but requires more convincing evidence that supports the regulation. A substantial evidence test is applied in the review of both the formal and hybrid rulemaking, and one can challenge the agency’s regulation if it is unsupported by substantial evidence. The arbitrary and capricious standard simply requires some proof or basis for the regulation, where more substantial evidence requires that more convincing evidence exist in support of the regulation than against it.
An agency’s regulation can only be upheld if it is supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. Such evidence must be valid, legal, persuasive, and that a reasonable mind might accept to support a conclusion, and force the mind to pass beyond speculation and conjecture; the question is not whether the testimony would have supported a contrary finding, but whether it would support the finding that was made. The case of William K. Williams’s v Arkansas State Board of Physical Therapy (2003), under substantial evidence, Appellant asks this court "to look to the question of whether the evidence heard by the Board was valid, legal, and persuasive."
The third theory that challenges an agency’s regulation is the rule that a regulation can be set aside if the agency did not comply 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. Therefore if the agency does not follow the Administrative procedure act by bringing it to the notice of the public prior to its rule making and taking the comments for certain amount of time, the regulation can be challenged.
The promulgated rules must be the result of the proceedings in order for the rules to be upheld. For example the case of Naturist Action Committee et al. v California State Department of Parks & Recreational et al. (2009), The Naturist Action Committee concluded that the memorandum is a regulation that has not satisfied the requirements of the APA and thus is not enforceable. The appeal was issued in favor of the Naturist Action Committee, and reverses the order issuing a writ of mandate and remand to the superior court to enter a new order denying the petition.
A fourth ground on which an agency’s regulation can be challenged is base on its constitutional standards. If the proposed regulation is unconstitutional, it can be challenged. Most cases of unconstitutional grounds deals with regulations that give an agency authority to search records or that impose discriminatory requirements for licensing professionals. For example in the case of Christopher v. SmithKline Beecham Corp., No. 11-204, 567 U.S. (2012) the question before the Court was the interpretation of the statutory phrase “in the capacity of outside salesman” with respect to pharmaceutical detailers.
There was no agency enforcement action but instead, the issue of the agency’s interpretation arose in the context of potential massive liability in a private lawsuit. When an agency announcement of its interpretation of a statute or regulation is preceded by a very lengthy period of conspicuous inaction in terms of government enforcement actions, the potential for unfair surprise is acute. This enforcement inactivity by the government in the face of a practice that may be occurring in an entire industry suggests, according to the Court, that the practice was not even unlawful. This is often the case in many FDA interpretations.
Fifth basis for challenging an agency’s regulation is the ultra vires standard. An ultra vires regulation is one that goes beyond the authority given to the agency in its enabling act. If an agency tries to change the substance and purpose of the enabling act through regulation, the regulations would be ultra vires. If a reviewing court decides that the enabling legislation does not authorize the agency action at issue, the agency action is legally void. Most ultra vires actions by agency‘s occurs in cases involving statutory review.
For example under the Kelly 192: lender liability: Federal courts have interpreted the Superfund law (CERCLA-ch 13) to make lenders liable for a superfund cleanup if the lenders exercised management control over the mortgaged facilities that included waste disposal. In response to the lender liability rulings, EPA adopted new regulations to reduce lender liability to less than what CERCLA and the courts had determined lender liability to be. The court said that EPA in adopting the lender liability regulation was ultra vires because the EPA was not legally authorized by CERCLA to change the legal liability from what CERCLA and the courts had said it was.
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?
If I wanted to overturn the FMCSA regulation, the best way to challenge its decision to renew the exemptions from the vision requirement in the Federal Motor Carrier Safety Regulations for the 25 individuals would be through the substantial evidence standard. Although the FMCSA has the legal authority to exempt individuals from the vision requirements, it must however provide substantial evidence that granting the exemption will not compromise safety. These evidence must be convincing and prove that granting these exemption renewals will provide a level of safety that is equivalent to, or greater than the level of safety maintained without the exemptions for these commercial motor vehicle (CMV) drivers.
If the evidence provided is not consistent with the requirements at 49 U.S.C. 31136 (e) and 31315 for exemptions renewal, and it is not valid, legal, persuasive, and that a reasonable mind might accept to support a conclusion, then the regulation is unsupported by the evidence. Therefore the rule cannot be upheld by the agency, in which I can then challenge the FMCSA and have the regulation overturn because it is unsupported by substantial evidence.