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Regulations and the Rule-making Process

Regulations and the Rule-making Process

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Regulations and the Rule-making Process

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  1. Regulations and the Rule-making Process • “ … when you are up to your ass in alligators, it is difficult to remember that your initial objective was to drain the swamp.”

  2. Unpacking Landscape Goods Service Artifacts Legislation Regulation Judicial Opinions Organization of Space Organization of Behavior Landscape Law Public Policy Evaluation

  3. Unpack law into statutory, administrative and case law Congress Legislative Mandate Start anywhere Statute, also known as legislation, act, or even law (yea – confusing) Rule, also known as regulation, administrative law Case law, also know as judicial opinion, even ruling (yea – also confusing) Current Public Policy/Law Agency Legislation Courts Regulation LAW – PUBLIC POLICY

  4. Administrative law Congress Legislative Mandate Agency Legislation Courts LAW – PUBLIC POLICY

  5. Administrative law Congress Legislative Mandate Agency Legislation Courts Regulation LAW – PUBLIC POLICY

  6. The Research Problem • Understanding the rule-making process • Regulations (rules), rule-making process, cumulation and codification

  7. The Research Problem • Understanding the rule-making process • Regulations (rules), rule-making process, cumulation and codification • B. Understanding the books, databases, and web sites containing the rules • Federal Register, Code of Federal Regulations

  8. A Decision Made by a Branch of the Federal Government • Legislation, Statute, Act • Legislative History, • Compilation and Codification • Rule, Regulation • Rule-making process • Compilation and Codification

  9. Project 3. Find a regulation authorized by the statute in Project 1 in the relevant issue of the Code of Federal Regulations – Make a copy of it. Submit this as an Appendix – if large submit the first few pages and the last few • In three pages describe, in colloquial English, what it was intended to do and how • Trace its history, from when it was first published as a Proposed Rule in the Federal Register, most likely soon after the act that authorized it, to when it was published as a Final Rule in the Federal Register and, subsequently, in the Code of Federal Regulations • Describe some of the changes in the rule since it was first promulgated • Using  publications of the appropriate agency and periodicals, such as the National Journal and the Congressional Quarterly Weekly, and other, more popular, periodicals (e.g. Time, Newsweek), as well as newspapers, the Internet and traditional library materials, briefly comment on the consequences of the regulation

  10. Regulations and the Rule-making Process The Executive Branch of the Federal Government

  11. Rule‐making Power • Agencies belonging to the executive branch of the federal government issue rules and regulations • Legislative mandate • A large portion of U.S. law takes the form of agency rules • This has occurred because of the growth of the responsibilities of the federal government • The number and responsibilities of federal agencies during the twentieth century, especially during the New Deal era • Another period of growth was the 1970s, when new programs were created in the areas of the environment, occupational health and safety, and consumer safety The Administrative Agency in Historical Perspective

  12. http://directorblue.blogspot.com/2010/12/one-chart-to-rule-us-all.htmlhttp://directorblue.blogspot.com/2010/12/one-chart-to-rule-us-all.html http://www.thefactfile.com/wp-content/uploads/2012/01/fedwork2.jpg

  13. http://innovationandgrowth.wordpress.com/2010/11/17/the-age-of-regulation-started-ten-years-ago/http://innovationandgrowth.wordpress.com/2010/11/17/the-age-of-regulation-started-ten-years-ago/ The Economic Impact of Environmental Regulation

  14. 3 USC 301 (Added Oct. 31, 1951, ch. 655, §10, 65 Stat. 712) • The President of the United States is authorized to designate and empower the head of any department or agency in the executive branch, or any official thereof who is required to be appointed by and with the advice and consent of the Senate, to perform without approval, ratification, or other action by the President • Any function which is vested in the President by law • Provided, That nothing contained herein shall relieve the President of his responsibility in office for the acts of any such head or other official designated by him to perform such functions

  15. 3 USC 301 (Added Oct. 31, 1951, ch. 655, §10, 65 Stat. 712) • The President of the United States is authorized to designate and empower the head of any department or agency in the executive branch, or any official thereof who is required to be appointed by and with the advice and consent of the Senate, to perform without approval, ratification, or other action by the President • Any function which is vested in the President by law • Provided, That nothing contained herein shall relieve the President of his responsibility in office for the acts of any such head or other official designated by him to perform such functions • Such designation and authorization shall be in writing, • published in the Federal Register • subject to such terms, conditions, and limitations as the President may deem advisable • revocable at any time by the President in whole or in part

  16. The President’s Role in Regulation • The Executive Branch (White House) • Legislation • Presidential Nominations and Appointments • The Cabinet (White House) • Other Executive Agencies (Library of Congress) http://www.whitehouse.gov/administration/cabinet/ July 26, 2012

  17. Reorganization • 5 USC 901-913 Executive Reorganization • President Obama Announces proposal to reform, reorganize and consolidate Government (White House Jan. 13, 2012) • Presidential Reorganization Authority: History, Recent Initiatives, and Options for Congress (CRS Dec. 2012) • Reorganization Plan No. 3 (Wikipedia)

  18. Government Organization (5 U. S. Code)

  19. Legislation Administrative Procedures rule-making authority rule-making process Agency

  20. Legislation Administrative Procedures rule-making authority rule-making process Agency Fact-finding, scientific standards Federal Register Proposed Rule

  21. Legislation Administrative Procedures rule-making authority rule-making process Agency Fact-finding, scientific standards Federal Register Proposed Rule Facts & scientific standards comes under public scrutiny Final Rule Federal Register Individual, Corporate, & Government Behavior

  22. Legislation Administrative Procedures rule-making authority rule-making process Agency Fact-finding, scientific standards Federal Register Proposed Rule Facts & scientific standards comes under public scrutiny Final Rule Federal Register Individual, Corporate, & Government Behavior Code of Federal Regulations

  23. APA Federal Register Act • Safe Drinking Water Legislation • Safe Drinking Water Act (1944) • Safe Drinking Water Act of 1974 • Safe Drinking Water Amendments of 1977 • Safe Drinking Water Act Amendments of 1986 • Safe Drinking Water Act Amendments of 1996 • Environmental Protection Agency • Proposed Safe Drinking Water Regulations Federal Register • Final Safe Drinking Water Regulations Federal Register • Code of Federal Regulations

  24. Safe Drinking Water Act of 1974 Pub. L. 93-523, 88 Stat. 166042 U.S.C. 300 et seq • “To amend the Public Health Services Act to assure the public is provided with safe drinking water, and for other purposes”

  25. Safe Drinking Water Act of 1974 Pub. L. 93-523, 88 Stat. 166042 U.S.C. 300 et seq • “To amend the Public Health Services Act to assure the public is provided with safe drinking water, and for other purposes” • What is the chemical composition of safe drinking water? • What is the chemical composition of unsafe drinking water? • How can safety be compromised? • What activities change the chemical composition of water to make • safe drinking water unsafe? • unsafe drinking water safe?

  26. Safe Drinking Water Act of 1974 Pub. L. 93-523, 88 Stat. 166042 U.S.C. 300 et seq • “To amend the Public Health Services Act to assure the public is provided with safe drinking water, and for other purposes” • What is the chemical composition of safe drinking water? • What is the chemical composition of unsafe drinking water? • How can safety be compromised? • What activities change the chemical composition of water to make • safe drinking water unsafe? • unsafe drinking water safe? • Who is responsible for providing it? • Who should pay for it? • How should it be provided?

  27. Safe Drinking Water Act of 1974. Pub. L. 93-523, 88 Stat. 1660; 42 U.S.C. 300 et seq • To protect public health by regulating the nation's public drinking water supply • EPA web site

  28. Rule-Making • Who has Rule-Making Power? • Whomever has been given the power to make rules by Congress • Executive departments comprising the Cabinet • Most Independent Agencies and Government Corporations • Some Boards, Commissions, and Committees

  29. The Ultimate Outcome of the Federal Regulatory Process

  30. The Ultimate Outcome of the Federal Regulatory Process

  31. General Resources • Regulation (Wikipedia) • Regulations.gov (US Government) • Laws and Regulations (Environmental Protection Agency • Mercury Emissions and Utilities (EPA) • Nuclear Regulatory Commission Regulations • OSHA Law & Regulation (Occupational Health & Safety Administration) • Federal Motor Carrier Safety Administration Rules and Regulations • Report to Congress on the Costs and Benefits of Federal Regulations (OMB) • The Impact of Regulatory Costs on Small Firms (Small Business Administration) • Federal Regulatory Reform: An Overview (Congressional Research Service) • Reports on Federal Agency Major Rules (GAO) • Regulatory Reform in the Power Industry (Cato Institute, 1996) • Regulation Magazine (Cato Institute) • History of Air Bags (Motorvista.com) • The Wetlands Regulation Center (Environmental Technical Services Inc)

  32. National Highway Traffic Safety Administration (NHTSA) • NHTSA was established by the Highway Safety Act of 1970 to carry out safety programs previously administered by the National Highway Safety Bureau • The agency directs the highway safety and consumer programs established by the National Traffic and Motor Vehicle Safety Act of 1966, the Highway Safety Act of 1966, the 1972 Motor Vehicle Information and Cost Savings Act, and succeeding amendments to these statutes • NHTSA Statutory Authority

  33. National Highway Traffic Safety Administration (NHTSA) • In 1964 and 1966, public pressure grew in the U.S. to increase the safety of cars, culminating with the publishing of ”Unsafe at Any Speed”by Ralph Nader, an activist lawyer, and the "Accidental Death and Disability—The Neglected Disease of Modern Society” by the National Academy of Sciences • In 1966, Congress held a series of highly publicized hearings regarding highway safety, passed legislation to make installation of seat belts mandatory, and enacted Pub.L. 89–563, Pub.L. 89–564, and Pub.L. 89–670 which created the U.S. Department of Transportation on October 15, 1966 • This legislation created several predecessor agencies which would eventually become NHTSA, including the National Traffic Safety Agency, the National Highway Safety Agency, and the National Highway Safety Bureau • Once the Federal Motor Vehicle Safety Standards (FMVSS) came into effect, vehicles not certified by the maker or importer as compliant with US safety standards were no longer legal to import into the United States

  34. National Highway Traffic Safety Administration (NHTSA) • NHTSA was officially established in 1970 by the Highway Safety Act of 1970 (Title II of Pub.L. 91–605, 84 Stat.1713, enacted December 31, 1970, at 84 Stat.1739) • In 1972, the Motor Vehicle Information and Cost Savings Act (Pub.L. 92–513, 86 Stat.947, enacted October 20, 1972) expanded NHTSA's scope to include consumer information programs • Since then, automobiles have become far safer • The number of deaths on American highways hovers around 40,000 annually, a lower death rate per vehicle-mile travelled than in the 1960s • NHTSA has conducted numerous high-profile investigations of automotive safety issues, including the Audi 5000/60 Minutes affair, the Ford Explorerrollover problem and the Toyota: Sticky accelerator pedal problem. • The agency has introduced a proposal to mandate Electronic Stability Control on all passenger vehicles by the 2012 model year. This technology was first brought to public attention in 1997, with the Swedish moose test

  35. Agency Regulatory Information • Bureau of Land Management • National Park Service • Forest Service • US Department of Health and Human Services • US Department of Agriculture

  36. Administrative Law - Structure • The US Government Manual (GPO Access) • Federal Executive Branch (USA.gov) • US Department of Agriculture Agencies and Offices • Legal Information Institute (Cornell University) • Cases and Codes (FindLaw) • ProQuest Regulations • Code of Federal Regulations (HeinOnline) • Federal Register Library (HeinOnline)

  37. Administrative Law Outcome • Federal Register (FDsys) the official daily publication for rules, proposed rules, and notices of Federal agencies and organizations, as well as executive orders and other presidential documents. It is published Monday through Friday, except Federal holidays • Federal Register (National Archives) • Today’s Federal Register • Legal Information Institute (Cornell University) • Cases and Codes (FindLaw) • ProQuest Regulations • Code of Federal Regulations (HeinOnline) • Federal Register Library (HeinOnline)

  38. Administrative Law Outcome • Code of Federal Regulations (FDsys) the codification of the general and permanent rules published in the Federal Register by the executive departments and agencies of the Federal Government • Divided into 50 titles that represent broad areas subject to Federal regulation updated once each calendar year by the final rules published in the Federal Register • Legal Information Institute (Cornell University) • Cases and Codes (FindLaw) • ProQuest Regulations • Code of Federal Regulations (HeinOnline) • Federal Register Library (HeinOnline)

  39. How do I find a relevant regulation? • Parallel Table of Authority and Rules listing the sources of federal statutory law under which current regulations have been issued • Wild and Scenic Rivers Act (P.L. 90-542, October 2, 1968, 82 Stat. 906) • Current Wild and Scenic Rivers statutory law (16 U.S.C. 1271-1287) • Parallel Table 16 USC 1271--1287................................43 CFR Parts 3800, 8370 1271......................................... 43 Part 8350   1278...........................................36 Part 297   1280...........................................43 Part 3809   1281.......................................... 36 Parts 292, 297, 43 Part 8350   1281c.........................................43 Parts 8340, 8360 • 82 Stat. 906...........................................43 CFR Part 2270

  40. To Find a Regulation • In GPO • Check the Parallel Table of Authorities and Rules • Retrieve CFR sections by citation • Search or browse CFR • Look for your regulation by subject (e.g., campaign funds) or by agency (e.g., Federal Election Commission) • Look in Legal Information Institute • A search in ProQuest Congressional • For those who chose an early act look at earlier version of CFR – HeinOnline

  41. Federal Register • The Federal Register is a centralized means of publishing regulations, presidential documents and notices • Created by the Federal Register Act of 1935 (49 Stat. 501; as amended 44 U.S.C.  §1501 et seq) • Before it started in 1935 such materials were published without any formal organization As a consequence individuals, organizations and even the federal agencies operated in ignorance of applicable law

  42. Rule-making Process

  43. Legislation enacted by the legislative branch and signed by the President • Establishes national goals • Describes how Congress intends to achieve that purpose • What assumptions, often called findings, Congress made • What authority Congress delegated • What money Congress appropriated

  44. Legislation enacted by the legislative branch and signed by the President • Establishes national goals • Describes how Congress intends to achieve that purpose • What assumptions, often called findings, Congress made • What authority Congress delegated • What money Congress appropriated • Regulations promulgated by the executive branch, operating under a legislative mandate, defines • how the goals will be reached • what changes in behavior are necessary to achieve those goals

  45. Without legislation that delegates the necessary authority (and appropriates the necessary funding) there can be no regulation • Every regulation has been authorized by legislation • US Fish and Wildlife Service • US Forest Service • US Food and Drug Administration • Consumer Product Safety Commission • Federal Communications Commission • Transportation Security Administration • Immigration & Naturalization Service • US Customs and Border Protection

  46. Every regulation is first published in the Federal Register • Every regulation is subsequently published in the Code of Federal Regulations

  47. Legislative History (Process) Legislation Statutes at Large Compilation & Codification US Code

  48. Legislative History (Process) Legislation Statutes at Large Compilation & Codification US Code Rule-making (Process) Regulation Federal Register Compilation & Codification Code of Federal Regulations