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: (a) a Word document with the questions and your answers and (b) a copy of the proposed regulation you used for this assignment. (10 points) Fish and Game commission controls the regulation. It stops a complete moratorium on salmon fishing and creates a season in conjunction with the existing Federal season for salmon fishing in those areas. I sometimes enjoy going fishing with my father and this would allow us to catch some of the more palatable fish (salmon). 2. Describe the proposal/change. (10 points)
The proposal would change the existing section 27.80 from having all ocean salmon recreational fishing seasons closed. An example of the possible change is below. Instead of having all recreational salmon seasons being closed, they will institute a policy of having areas subject to the same seasons as the Federal regulations.
For all the waters of the ocean north of Horse Mountain and in Humboldt Bay: Closed to fishing in April. The remainder of the 2012 season will be decided in April by the PFMC and Commission and the section will be amended pursuant to the regulatory process. (2) For all areas south of Horse Mountain: The season, if any, may occur within the range of April 7 to April 30, 2012. The proposed bag limit will be from 1 to 2 fish and the proposed minimum size will be from 20 to 26 inches total length. The exact opening and closing dates, along with bag limit, minimum size, and days of the week open will be determined in March and may be different for each sub–area.
3. Write the public comment that 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) The comment I would submit would be “This is a valid and acceptable proposal, it allows for recreational fishing of salmon during federally accepted time frames and doesn’t completely block the ability to fish recreationally without threatening the fish from overfishing”.
I believe this comment would help bolster the new regulation, allowing seasonal salmon fishing to resume. 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) February 29, 2012 is the final date that comment can be made; however there are scheduled hearings on it March 7, 2012 at 8:30 a.m. and February 2, 2012 at 8:30 a.m. 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 I have submitted my comment, a public hearing should be scheduled and I will have the right to appear and make a formal statement at the public hearing. 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. Ultra vires is a method of challenge stating that they have gone beyond their authority to implement the regulation in question. The substantial evidence test is where it is argued that the merits of the regulation is not supported by substantial evidence.
The arbitrary and capricious argument is where it is argued that the rule is arbitrary, an abuse of discretion, or is in conflict with another law. A sunset law would be an act of congress that gives a regulatory agency a period of time to justify its continuation. Zero based budget would be where they start with no budget and have to justify the budget for each regulation that is passed. 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 am in favor of the proposed regulation but if I were to contest it, I would use an the argument that it is arbitrary and capricious as there is already a federal law governing the proposed regulation, so there is no need to even have the rule in the first place. I would also use the ultra vires argument in that it is already covered under federal authority and is therefore outside of their bounds since the supremacy clause states that Federal law supersedes that of state law.