Week 2 Homework Help – 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?
Minnesota Board of Accountancy (MBOA) – I’m interested in this new proposed regulation because my intent is to sit for the CPA exam and become a licensed account and if that were to happen I would need to understand the requirements for keeping my license active.
2. Describe the proposal/change. (10 points)
The proposed rule change R-04183 is around updating the rules governing licensure, continuing professional education, firm name permits and housekeeping updates. The proposed rule changes for renewal certification are to reflect changes adopted by legislature statures made during 2013. During 2013 the legislature changed the license renewal from every three years to every year. The changes related to continuing professional education are to clarify what was considered confusing language in the past others no changes are being made to the requirements. The changes to the firm names are to adopt 2013 legislation changes.
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)
It is in my opinion that the proposed changes are necessary and clarifying and very much needed. I feel that the MBOA are really thinking about the rules set forth in Minnesota Statues, section 326A.02, subdivision 5 are very explanatory in nature and don’t change requirements or laws pertaining to licenses or continuing education thus they just provide for more explanatory clarification and take out confusing language thus I think this rule is necessary and needed. I also feel that the firm name permit part of the rule may be unnecessary and erroneous and was it really necessary to go into the extensive detail provided in this rule. I don’t necessarily see the need for all the qualifications of a name of a firm or organization seems to be ambiguous and more detail that is necessary. I do feel in general that the additional regulation does add value to the Statue and will help individuals better understand the license, continuing education rules and the distinction and rules around a firm name.
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)
The MBOA intended to adopt these rules without a public hearing and thus if you have comments or would like to request a hearing they are due by January 8th 2014 at 4:30 pm. If there aren’t at least 25 valid written requests received by January 8th then there won’t be a hearing and the rule will be adopted. There were more than 25 written requests so there is a public hearing set for January 30, 2014 at 9:00 am. There are no further updates on this rule at this time.
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.)
Once you have submitted your comment the APA allows for you to a public hearing or a chance to challenge the regulation if you so choose to. As in this regulation you can see that the MBOA attempted to pass this law without a public hearing and instead indicated that if they received 25 or more comments then they would hold a public hearing to hear the objections or comments on the proposed changes. This has to be offered to all under the APA.
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 otherwise not in accordance with the 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 doesn’t have 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 that goes beyond the authority given to the agency in its enabling act. They don’t have the rights to enable them to pass the regulation.
Retrieved from http://usgovinfo.about.com/library/bills/blapa.htm

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 were to try to challenge this regulation I would use theory number 3 above because although they did seek comment from the public they are also indicating that as of December 9, 2013 this law will be put into place and the changes to the language in the associated statues will be updated. Although I do feel that this law is important and one that really just informs the public of their options I would try to argue that they didn’t follow all the necessary APA rules and guidelines associated with implementing a new regulation.