Transcript Regulatory History Process & Documents Peter A. Hook Electronic Services Librarian Indiana University Maurer School of Law — Bloomington Jennifer Bryan Morgan Government Documents Librarian Indiana University Maurer School.

Regulatory History
Process & Documents
Peter A. Hook
Electronic Services Librarian
Indiana University
Maurer School of Law — Bloomington
Jennifer Bryan Morgan
Government Documents Librarian
Indiana University
Maurer School of Law — Bloomington
Prof. Barnes B595: AEP (Advanced Environmental Practice)
January 27, 2009
Part 1: Process and Resultant
Documents
“Developing Regulations:
From Start to Finish”
• http://www.epa.gov/lawsregs/brochure/developing.html (All
content is from this site, unless otherwise noted, for slides 1 – 25).
• Identify the potential need for a regulation.
• Form a workgroup to learn more.
• “The workgroup is led by the EPA office that will be
writing the regulation (i.e., the "lead office") and
includes members from other parts of the Agency
with related interests or responsibilities.”
• “The workgroup may work for months - employing
expert scientists, economists, and other analysts before an appropriate course of action is decided
upon.”
Steps in the Process
1. Commence Activity
2. Analyze the Problem
3. Identify Options
4. Publish a Proposal & Request Public Comments
5. Review Public Comments
6. Issue Regulation
7. Analyze Regulations, Monitor Compliance,
Enforce Rules (Enforcement Actions)
(1). Commence Activity
• “EPA typically operates under
statutory authority (Clean Air Act,
Clean Water Act, etc.) to create
regulations.”
• “When we have determined that an
issue exists that cannot be addressed
in the absence of regulatory activity,
we commence a new regulatory
action.”
(2). Analyze the Problem
•
“The workgroup begins by developing a work plan that will
guide the regulatory development process.”
•
“This plan is called an Analytic Blueprint and outlines the
major questions that must be answered, the data needed,
the experts who should be consulted, the anticipated costs,
and other rulemaking needs.”
•
“EPA's senior management provides guidance on the
Analytic Blueprint early in the process at a meeting called
Early Guidance.”
•
“After the Early Guidance meeting, the workgroup uses its
Analytic Blueprint to begin studying the problem.”
•
“EPA may draw information from EPA's research, scientific
literature, other government agencies, or other researchers
in the United States and abroad.”
(Emphasis added)
(3). Identify Options
•
“May require evaluating environmental
technologies, changes in environmental
management practices, and incentives that can
motivate better environmental performance.”
•
The EPA “takes related issues into account
…such as the impact of various options on small
businesses, on children's health, or on state and
local governments.”
•
“Sometimes the workgroup might find there is no
need for regulation.”
(4). Publish a Proposed Rule
& Request Public Comments
• “[T]he workgroup drafts a proposed
regulation for publication in the Federal
Register.”
• “The draft publication is called a Notice of
Proposed Rulemaking (NPRM).”
• “The public comment period typically lasts
60 to 90 days.”
First appearance of a proposed
rule in the Federal Register.
The preamble provides
invaluable background
information, rationales and
other contextual information for
the proposed or final rule.
Enabling Statute
CAA = Clean Air Act
HAP = Hazardous Air Pollutants
68 Fed. Reg. 1660, 1663
Other Aspects of the Preamble
Other Aspects of the Preamble
Other Aspects of the Preamble
And, after 44 Pages, The Proposed Rule(s)
Continues for 60 more
pages …
(5). Review Public Comments
• “[W]orkgroup reviews and evaluates all the
comments received.”
• Workgroup develops a draft final
regulation.
• Draft final regulation reviewed and
approved by EPA senior management.
• “All public comments and [EPA] responses
are posted in the regulation's docket.”
(Emphasis added)
(6). Issue Final Regulation
• “After approval by senior management, the
EPA Administrator or his delegee reviews
the final regulation and decides whether it
should be issued.”
• “If the Administrator decides to issue the
regulation, it is published in the Federal
Register.”
• “Effective dates vary. A regulation may be
effective on the day it is published or it may
be effective [at some date in the future].”
Final Rule Printed in the Federal Register
Final Rule Issued with its own Preamble
Published in the Code of Federal Regulations (CFR)
But Wait …
And thus a new 40
CFR 63.7507 the
following year…
With a more recent Federal
Register Source Note:
(7). Analyze Regulations, Monitor
Compliance, Enforce Rules
• Some rules are subject to litigation.
• Some rules are overturned by Congress.
• Some rules are rewritten by subsequent
administrations.
Variations in the Process
•
“[T]he workgroup might decide to draft a notice seeking
public comment and information before the proposal is even
developed.”
•
“[C]alled an Advanced Notice of Proposed Rulemaking
and is also published in the Federal Register.”
•
“Sometimes the workgroup receives new data from the
public during a comment period, in which case we might
publish in the Federal Register a Notice of Data
Availability (NODA) so interested parties can learn more
and submit additional comments.”
•
“[T]he workgroup might decide to take a new direction after
receiving new data, which in some cases results in a
Supplemental Notice of Proposed Rulemaking.”
(Emphasis added)
Part 2: How to Compile a
Regulatory History
Federal Regulatory History
• Like federal statutes and the legislative process, the history of
federal regulations and rulemaking also can be researched to
uncover regulatory intent. Unlike legislative histories,
however, there are fewer resources available to research
regulatory history and intent.
• The Federal Register is the only official source in which all
phases of the regulatory process are reported.
• The regulatory preamble (an introduction to the regulation) will
contain the reasoning behind and objectives of the rule. Both
the proposed and final versions of a regulation will contain a
preamble.
Step One: Find the regulation
• The first step in creating a regulatory history is to find the
regulation, as codified, in the Code of Federal Regulations
• The CFR can be accessed through a variety of sources:
Print: Current edition shelved in Reference. Superseded editions shelved on
the 4th floor. For more details, search IUCAT or refer to the online research
guide, “Regulatory History.”
Online: GPO Access (1997-), HeinOnline (Inception, 1938-), Lexis (1981-),
Westlaw (1984-). For more details, refer to the handout “Online Sources for
Administrative Regulations.”
Step Two: Locate the "Source" note
•
Once you have found your citation in
the CFR, look for the “Source”
note. This is usually located at the
beginning of the CFR part or in
brackets after the relevant
section. This source note gives the
citation to the Federal Register where
the final regulation was originally
published in final form.
Step Two: Locate the "Source" note
•
According to this section of the
regulatory code (40 CFR 63.7480),
prior history can be found in 60 FR
55253.
Step Two: Locate the "Source" note, continued
• The Federal Register, like the CFR, is available from a variety
of sources:
Print: Current issues (most recent 12 months) shelved in Reference. 1936-1983 shelved at
the ALF (request delivery through IUCAT). All indexes are shelved in Reference. For
more details, search IUCAT or refer to the online research guide, “Regulatory History.”
Online: GPO Access (1994- ), HeinOnline (Inception, 1936- ), Lexis (1980- ), Westlaw (1980- ).
For more details, refer to the handout “Online Sources for Administrative Regulations.”
• With a citation to the Federal Register, we can now look for a
preamble.
– Given that this citation is from 2004 we could use any of the
online sources.
Step Three: Locate the Federal Register publication
and read the preamble of the final rule(s).
• The preamble of a final rule typically contains:
– A statement of the requirements in the law.
– Citations to the proposed rule and other rulemaking
history.
– Discussion and analysis of public comments received.
– Discussion of changes that have occurred since.
publication of the proposed rule.
– Justification for agency's final decisions.
Step Three: Locate the Federal Register publication
and read the preamble of the final rule(s), cont.
•
“According to its Document Drafting Handbook, the Office of the Federal
Register mandates certain ‘preamble requirements’ from federal agencies
when they publish their proposed or final rules in the Federal Register.”
•
“These requirements delineate the basic ‘who, what, where, when, and why’
information and are set out as:
–
–
–
–
–
–
AGENCY
ACTION
SUMMARY
EFFECTIVE DATE (or DATES when comments are due)
FOR FURTHER INFORMATION CONTACT
SUPPLEMENTAL INFORMATION (which generally explains the regulatory history, the
rationale for the rule, and a summary of the comments received).”
(From: Law Librarians’ Society of Washington D.C., Questions and Answers in Legislative and Regulatory
Research)
Step Three: Locate the Federal Register publication
and read the preamble of the final rule(s), cont.
•
Since 1978, a preamble, following the above format, precedes the text of a
final or proposed regulation published in the Federal Register.
•
Before 1978, preambles seemed to be shorter and not precisely organized.
•
Before 1971 brief explanations of regulations followed the text of regulations
published in the Federal Register.
•
The preamble to a new or revised rule is not part of the regulation, per se,
and thus is not required to be published in the Code of Federal Regulations.
(From: Law Librarians’ Society of Washington D.C., Questions and Answers in Legislative and
Regulatory Research)
Step Three: Locate the Federal Register publication
and read the preamble of the final rule(s), cont.
•
Look for references to documents
such as "Environmental Impact
Statements" and "Economic
Analyses."
Step Three: Locate the Federal Register publication
and read the preamble of the final rule(s), cont.
•
Look for references to documents
such as "Environmental Impact
Statements" and "Economic
Analyses."
–
These documents are generally filed
with the regulatory docket and will be
available for public inspection.
Step Three: Locate the Federal Register publication
and read the preamble of the final rule(s), cont.
•
Look for discussion of public
comments to and/or public
meetings concerning the
rulemaking.
Step Three: Locate the Federal Register publication
and read the preamble of the final rule(s), cont.
•
For most regulations, the public is
permitted to comment on
proposed regulations under the
Administrative Procedure Act.
•
Comments are summarized in the
preambles of rulemaking
publications in the Federal
Register.
Step Three: Locate the Federal Register publication
and read the preamble of the final rule(s), cont.
•
The Vice President of Indiana
University submitted comments to
EPA, describing how the proposed
regulation would affect the
university’s boiler plant.
Step Three: Locate the Federal Register publication
and read the preamble of the final rule(s), cont.
•
The Vice President of Indiana
University submitted comments to
EPA, describing how the proposed
regulation would affect the
university’s boiler plant.
–
The letter includes detailed comments
from IU’s staff expert on air issues
Step Three: Locate the Federal Register publication
and read the preamble of the final rule(s), cont.
•
Look for references and citations to
rulemaking publications (including the
proposed rule and memoranda) that
preceded the final rule.
–
Usually, you can find more insight into
regulatory intent from documents
generated earlier in the rulemaking
process.
Step Three: Locate the Federal Register publication
and read the preamble of the final rule(s), cont.
•
When a regulation is first proposed, the
agency will likely discuss the legislation
that was the impetus for the rulemaking,
or perhaps a petition for rulemaking was
filed by an interested party.
•
Also, court rulings on the constitutionality
of a regulation may result in an
amendment to that regulation.
Step Three: Locate the Federal Register publication
and read the preamble of the final rule(s), cont.
•
Review the preceding rulemaking
publications for indications of
regulatory intent, references to
environmental and economic
reports, public comments, and
public meetings.
–
If something in the preceding
rulemaking looks like it might be
helpful, note the details provided so
that you can search for it online or
request it from the agency.
Step Four: Note the rulemaking docket number
•
In the Federal Register there should
be a citation in the beginning of the
section which gives a docket number
for the agency.
•
When a rulemaking or non-rulemaking
action is announced, a docket is
established in EPA Dockets with an
assigned tracking number to
accumulate materials throughout the
process.
Step Four: Note the rulemaking docket number, continued
•
A docket is a repository for documents
or information related to an Agency's
rulemaking activity. The docket
generally consists of the materials
specifically referenced in the Federal
Register preamble, including any
public comments received and
supporting analyses (such as
Environmental Impact Statements or
Economic Analyses).
–
The docket number will be important if
you want to obtain copies of these
materials.
Step Four: Note the rulemaking docket number, continued
Step Five: Locate agency’s docket and its
associated materials
•
Regulations.gov serves as EPA’s
electronic public docket and online
comment system
•
Launched in January 2003,
Regulations.gov is a source for all
regulations (or rulemakings) issued by
U.S. government agencies, and
includes:
•
Regulations that are open for public
comment (proposed)
•
Regulations that are closed for comment
(final)
•
Other non-rulemaking documents, such
as Federal agency notices, supporting
materials, public comments, and Federal
agency guidance and adjudications
Step Five: Locate agency’s docket and its
associated materials, continued
•
For EPA dockets not available
online, you can visit the EPA
Docket Center in person or
submit a FOIA (Freedom of
Information Act) request for
copies of these documents.
Fees are generally charged
over a certain number of pages
copied.
–
Visit the EPA website
(http://www.epa.gov/epahome/dockets.htm)
to get contact information for
EPA Headquarters Dockets.
–
The Dockets, Electronic
Dockets, and Information
Centers serve as the repository
for information related to
particular Agency actions.
Step Five: Locate agency’s docket and its
associated materials, continued
•
Generally, the Federal Register will
provide an agency contact in its
preamble, usually preceded by the
phrase "For Further Information
Contact.” Remember to note the
docket number for the regulation so
that the agency personnel can locate
the docket file for you.
Step Five: Locate agency’s docket and its
associated materials, continued
•
There will also be contact information
included with the docket information in
the preamble.
Sources
•
Bobbi Weaver, Compiling a Federal Regulatory History, California
Western School of Law,
http://www.cwsl.edu/main/default.asp?nav=electronic_resources.asp&bo
dy=electronic_resources/regulatory_history.asp (rev. Sept. 2006) (last
visited Feb. 23, 2009).
•
Developing Regulations: From Start to Finish, EPA,
http://www.epa.gov/lawsregs/brochure/developing.html (last visited Feb.
23, 2009) (Copy on file with the authors).
•
Federal Regulatory History, Santa Clara Law Library,
http://www.cwsl.edu/main/default.asp?nav=electronic_resources.asp&bo
dy=electronic_resources/regulatory_history.asp (last visited Feb. 23,
2009).
•
Rick McKinney and Ellen Sweet, Questions and Answers in Legislative
and Regulatory Research, Law Librarians' Society of Washington, D.C.,
Legislative Source Book, http://www.llsdc.org/Legis-Q-and-A/ (rev. Oct.
2004) (last visited Feb. 23, 2009).