Transcript Regulations and the rule

Course Purpose
Landscapes comprises the visible evidence of
human activities on the “land surface” – most
usually associated with a particular sort of
behavior – “land use”
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Activities – farming
Artifacts – structures, installations,
facilities
Collection of artifacts (places) – farms,
dairy farms, cities
Goods produced – automobiles, drugs,
cosmetics
Services provided – banking, mass
transit, education
Course Purpose
Landscapes comprises the visible evidence of
human activities on the “land surface” – most
usually associated with a particular sort of
behavior – “land use”
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Activities – farming
Artifacts – structures, installations,
facilities
Collection of artifacts (places) – farms,
dairy farms, cities
Goods produced – automobiles, drugs,
cosmetics
Services provided – banking, mass
transit, education
They are political statements representing the
outcome of rational decisions of individuals,
corporations, and governments
Decisions to produce particular goods and
provide particular services in particular ways
are made within a context of federal policy
that
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Defines national goals
Promotes, protects, and rewards certain
behaviors
Defines, prohibits and penalizes other
behaviors
A Paradigm for Landscape
Legislation
Regulation
Judicial Opinions
Organization of Space
Law
Public Policy
Landscape
Organization of Behavior
Evaluation
Government role
Activity
Goods
Service
Artifacts
Indices
Congress
Legislative Mandate
Agency
Legislation
Courts
LAW – PUBLIC POLICY
Regulation
The operations of the federal government provide
a context in which individuals, corporations, and
governments make decisions about their behavior
Public Policy– created by a federal government acting under
authority defined, ambiguously, in a constitution
A Legislative branch of government enacts legislation, statutes, acts that
• defines and establishes broad social goals
• outlines what behaviors are needed to achieve those goals
• delegates authority considered necessary to achieve the necessary behavior
• appropriates revenue considered necessary to implement legislation
An Executive branch of government creates (promulgates) rules, regulations that
define, promote, and enforce behavior
A Judicial branch examines claims by individuals, organizations, even government
itself, that specific legislation or specific regulation violates their constitutional rights
and cause some harm for which they should receive compensation
The Problem
A.
Understanding the process in which individuals inside and outside the federal
government debate issues and the outcomes of the process
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Legislation (act, statute, laws), legislative process, cumulation and codification
Regulations (rules), rule-making process, cumulation and codification
Judicial Opinions, litigation process, court rules, encyclopedias, digests
B. Understanding the databases (books) in which these outcomes, even the debates,
are published
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Statutes at Large (Public Law), US Code
Federal Register, Code of Federal Regulations
United States Reports, other reporters
The Problem
A.
Understanding the process in which individuals inside and outside the federal
government debate issues and the outcomes of the process
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Legislation (act, statute, laws), legislative process, cumulation and codification
Regulations (rules), rule-making process, cumulation and codification
Judicial Opinions, litigation process, court rules, encyclopedias, digests
B. Understanding the databases (books) in which these outcomes, even the debates,
are published
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Statutes at Large (Public Law), US Code
Federal Register, Code of Federal Regulations
United States Reports, other reporters
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.”
Statutory law
Congress
Agency
Legislation
Courts
LAW – PUBLIC POLICY
Administrative law
Congress
Legislative Mandate
Agency
Legislation
Courts
LAW – PUBLIC POLICY
Regulation
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
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
A.
In three pages describe, in colloquial English, what it was intended to do and how
B.
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 also in the Code of Federal
Regulations
C. Describe any changes in the rule since it was first promulgated
D.
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
Regulations and the Rule-making Process
The Executive Branch of the Federal Government
Rule‐making Power
 Power of agencies of the executive branch
of the federal government to issue rules
and regulations
 A large portion of American law takes the
form of agency rules
 This has occurred because of the growth
in 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
3 USC 301 General authorization to delegate functions; publication
of delegations
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
3 USC 301 General authorization to delegate functions; publication
of delegations
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, shall be published in the Federal Register,
shall be subject to such terms, conditions, and limitations as the President may deem
advisable, and shall be revocable at any time by the President in whole or in part
The President’s Role in Regulation
The Executive Branch (White House)
The Cabinet (White House)
Other Executive Agencies (Library of Congress)
Executive Orders (National Archives)
Department of Homeland Security Reorganization Plan
Reorganization Plan of 1953 establishing the Department of Health, Education, and
Welfare
Reorganization Plan No. 3 and 4 of 1970 establishing the Environmental Protection
Agency and the National Oceanic and Atmospheric Administration
Government Organization (5 U. S. Code)
The Rule-making Process
The Administrative Procedures Act (APA) (Wikipedia)
Enacted on June 11, 1946 (Public Law 79-404, 60 Stat. 237) outlined the
administrative procedures federal agencies must follow to
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Identify information to be made public
Publish material in the Federal Register
Maintain records, including those involving certain meetings and hearings
Fulfill attendance and notification requirements for specific meetings and hearings
Issue licenses
Review agency actions
5 U.S.C. § 551 et seq
Federal Aviation Administration
Laws Affecting the Process of Rulemaking
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Federal Advisory Committee Act (5 U.S.C. Appendix 2)
Federal Register Act (44 U.S.C. 1501-1511)
Federal Register Laws Index
Negotiated Rulemaking Act (5 U.S.C. 561-570)
Paperwork Reduction Act (44 U.S.C. 3501-3520)
Regulatory Flexibility Act (5 U.S.C. 601-612)
Small Business Regulatory Enforcement Fairness Act of 1996
Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501-1571)
APA etc
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
Federal Register
• Proposed Safe Drinking Water Regulations
• Final Safe Drinking Water Regulations
40 Code of Federal Regulations 141-142
Safe Drinking Water Act of 1974. Pub. L. 93-523, 88 Stat. 1660;
42 U.S.C. 300 et seq
Legislation answers the following questions;
• Who is responsible for providing safe drinking waterit?
• Who should pay for it?
• How should it be provided?
Safe Drinking Water Act of 1974. Pub. L. 93-523, 88 Stat. 1660;
42 U.S.C. 300 et seq
Legislation answers the following questions;
• Who is responsible for providing safe drinking waterit?
• Who should pay for it?
• How should it be provided?
Legislation does not answer the following, however;
• 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?
General Resources
Regulation (Wikipedia)
Regulations.gov (US Government)
What are rules? (NP Action)
Laws and Regulations (EPA)
Nuclear Regulatory Commission Regulations
OSHA Law & Regulation
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)
All Agencies possess a Legislative Mandate
Bureau of Land Management
National Park Service
US Department of Health and Human Services
US Department of Agriculture
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
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NHTSA Statutory Authority
Without legislation that delegates the necessary authority there can be no regulation
Every regulation has been authorized by legislation
Every regulation is first published in the Federal Register
Every regulation is subsequently published in the Code of Federal Regulations
The United States Grain Act Aug 11, 1916, 39 Stat. 482 – original act
The United States Grain Standards Act - current statutory law
Grain Inspection, Packers and Stockyards Administration
Standards for Corn, 48 FR 28998, June 24, 1983, ACTION: Proposed rule
Revision to the Basis of Determination of Odor in the U.S. Standards for Wheat, Corn,
Barley, Rye, Sorghum, Flaxseed, and Triticale, 48 FR 44165, September 28,
1983, ACTION: Final rule
Standards for Corn, 49 FR 35339, September 7, 1984, ACTION: Final rule
Official United States Standards for Grain 7 CFR 810 – regulation (administrative law)
The Ultimate Outcome of the Federal Regulatory Process
Behavioral Change
The Ultimate Outcome of the Federal Regulatory Process
Behavioral Change
Consumer Product Safety Regulations
U.S. Consumer Product Safety Commission
Rules Promulgated by the Commission (16 CFR 1000 onwards)
Requirements for Full Size Baby Cribs (Explanatory Notice)
• 16 CFR 1508
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16 CFR 1632 (Standards for the Flammability of Mattresses and Mattress Pads)
FDA Approves Cloned Meat (Washington Post Jan 16, 2008)
USDA Recommends That Food From Clones Stay Off the Market (Washington Post
Jan 16, 2008)
Cloned Animals (Center for Food Safety)
Rule-Making
Who has Rule-Making Power?
Whomever has been given the power to make rules by Congress
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Executive departments comprising the Cabinet
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Most Independent Agencies and Government Corporations
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Some Boards, Commissions, and Committees
Administrative Law - Structure
The US Government Manual (GPO Access)
Federal Executive Branch (USA.gov)
US Department of Agriculture Agencies and Offices
Administrative Law Outcome - official
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)
Federal Register Tutorial (National Archives)
The Federal Register: What it is and How to Use it (Food & Drug Administration)
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
Proposed Rules
Proposed Rules contains notices that an agency intends to issue a rule
The purpose of these notices is to give interested persons an opportunity to participate
in the rule making prior to the agency adopting and publishing the final rule
Many such proposals involve changes to agency regulations that have been already
published in the Code of Federal Regulations (CFR) and request public comment
on those suggested changes
Documents relating to previously published proposed rules, extending the comment
period, announcing a public hearing, making supplemental information available,
correcting a previously published proposed rule, or even withdrawing a proposed
rule
Final Rules
Final Rules and Regulations contains final rules, regulatory documents having general
applicability and legal effect
Most rules are keyed to and codified in the Code of Federal Regulations (CFR)
Interim rules, designed to respond to an emergency situation, issued without prior
notice and are effective immediately. Such rules are usually followed by a final rule
document which confirms that the interim rule is final, addresses comments
received, and includes any further amendments
Section may include documents that have no regulatory text and do not amend the
CFR, for example
• general policy statements
• interpretations of agency regulations
Federal Register contains more than Rules!
The actual rule in the Federal Register is usually preceded by the information the
agency proposing the rules thinks is important for the public to know when looking at
the language of the rule
• Facts on which the rule is based
• The reason for particular standards
This information serves to explain and even justify the rule
Notices
Documents, other than rules or proposed rules, that are generally applicable
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Notices of hearings and investigations
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Committee meetings
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Agency decisions and rulings
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Delegations of authority
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Issuances or revocation of licenses
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Grant application deadlines
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Availability of environmental impact statements
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Filing of petitions and applications
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Agency statements of organization and functions
Sunshine Act Meetings
Notices of meetings published under the "Government in the Sunshine Act" (Pub. L.
94-409; 5 U.S.C. 552b(e)(3)) that requires meetings of Government agencies be
open to the public, with certain specified exceptions
Includes the time, place, and subject matter of the meeting, the name and telephone
number of the agency official to contact for more information, and whether the
meeting is open or closed to the public
Presidential Documents
Documents signed by the President and submitted to the Office of the Federal Register
for publication
Include Proclamations and Executive Orders as well as other documents such as
determinations, letters, memoranda, and reorganization plans
All compiled annually in title 3 of the Code of Federal Regulations
Administrative Law Outcome - official
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
Code of Federal Regulations (FDsys)
Electronic Code of Federal Regulations (GPO Access)
ProQuest Congressional
HeinOnline
Code of Federal Regulations (CFR)
The CFR is a compilation and codification of the general and permanent rules
published in the Federal Register
Divided into 50 titles representing broad areas of behavior subject to federal regulation
Each title divided into chapters usually bearing the name of the issuing agency
Each chapter is further subdivided into parts covering specific regulatory areas - parts
thus become the entity “a rule”
Large parts may be subdivided into subparts and all parts are organized in sections
Each part, and sometimes a section, is keyed to
• the legislative authority under which the agency promulgated the rule
• the issue of the Federal Register in which the final rule was published
Rules are cited to the section level
Each volume of the CFR is revised once each calendar year
Administrative Law Outcome - unofficial
ProQuest Congressional (ProQuest LLC)
The Federal Register Library (HeinOnline)
Regulatory Process
Regulatory Outcome
Proposed. Federal Register
Final. Federal Register
Final. Code of Federal Regulations
When does a new regulation get promulgated?
When Congress enacts new legislation giving an agency additional authorities (why
would Congress do that?)
When an agency discovers that an existing rule
• does not serve the purpose for which it was intended
• has unforeseen consequences
When a new administration comes into office
When lobbying efforts advance certain interests
Rule-making Research
You should work backwards
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Code of Federal Regulations = Final Rule (same as Final Rule in Federal Register)
Earlier in Federal Register – Final Rule
Earlier in the Federal Register – Proposed Rule
United States Department of Agriculture
<avocado>
Hass Avocado Promotion, Research, and Information (Agricultural Marketing Service)
7 CFR 1219 (FDsys)
• Authority: 7 U.S.C. 7801–7813 and 7 U.S.C. 7401
• Source 67 FR 7264, Feb. 19, 2002, unless otherwise noted
• Final Rule Feb 19, 2002
• Proposed Rule July 13, 2001
ProQuest Congressional
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
To Find a Regulation
In FDsys
• 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 – must have USC citation
Search in ProQuest Congressional – must have USC citation (USCS – Annotated
Code)
To find the authority for a regulation
At the beginning of the CFR part you are using (after the table of contents), look for an
authority note citing the United States Code section(s), or Statute, or Public Law,
which authorized the regulations
In the Federal Register an authority note for a proposed or final rule appears at the
beginning of the text of the rule (not the preamble)
To trace a current CFR section back to its origins
Look for a source note in the CFR at the beginning of the part (after the table of
contents), or at the end of a particular section
Look in the appropriate Federal Register describing the Final Rule for a reference to
the Proposed Rule published earlier
Trace the changes in the regulation over time
You could start by looking at the most recent CFR
But this may be long after your legislation
Look at the CFR for the year(s) following the legislation and find the relevant CFR – this
would be the first iteration of the rule
Then look at the Final Rule, referenced in the CFR and printed in the Federal Register
Then find the Proposed Rule, referenced in the Final Rule and printed in an earlier
issue of the Federal Register
Then proceed for each year! Kinda tedious
Alternatively search the FR for all references and track them down via the FR citations
Have you found the appropriate part of the Code of Federal Regulations?
Have you found the Proposed Rule in the Federal Register?
Have you found the Final Rule in the Federal Register?
Have you found any changes in the language of the Rule since it was first published in
the Code of Federal Regulations?
Have you found material in which the author(s) comments on the Rule?