A Teachable Moment?

1. A Teachable Moment?

2. The U.S. Constitution and the Supreme Court has given different branches of the Government different and complementary powers Congress Agency Courts LAW – PUBLIC POLICY

3. The U.S. Constitution and the Supreme Court has given different branches of the Government different and complementary powers Congress Agency Courts LAW – PUBLIC POLICY

4. The U.S. Constitution and the Supreme Court has given different branches of the Government different and complementary powers Congress Agency Courts LAW – PUBLIC POLICY

5. The U.S. Constitution and the Supreme Court has given different branches of the Government different and complementary powers Congress Agency Courts LAW – PUBLIC POLICY

6. The U.S. Constitution and the Supreme Court has given different branches of the Government different and complementary powers Congress Agency Courts LAW – PUBLIC POLICY

7. The Failure to Pass the Necessary Appropriations Legislation • What Congress Must Do to Avoid a Shutdown (New York Times Sept. 24, 2013) • Who Goes to Work? Who Stays Home? (New York Times Sept. 27, 2013) • How a Government Shutdown Would Affect Academe (Chronicle of Higher Education Sept. 30, 2013) • The Back and Forth Over the Shutdown (New York Times Oct. 1, 2013) • The Republicans Standing Their Ground (New York Times Oct. 1, 2013) • On Day 1, Parks Close, Workers Stay Home and ‘Panda Cam’ Goes Dark (New York Times Oct. 1, 2013) • Our Democracy Is at Stake (Thomas Friedman New York Times Oct. 1, 2013) • Due to a lapse in funding, the U.S. federal government has shut down (beSpacific Oct. 1, 2013)

8. The Debt Limit • The Debt Limit: History and Recent Increases (CRS September, 2013) • Treasury down to last steps on debt ceiling (CNN Money Oct. 2, 2013)

9. Regulations are issued by federal agencies, boards, or commissions in response to a legislative mandate - created through a process known as rulemaking • TheCode of Federal Regulations (CFR) is an annual publication that lists the official and complete text of regulations • Agency first publishes a proposed rule in the Federal Register (FR) to invite the public to comment • Rules published in the FR amend the CFR • Agency considers public feedback, makes changes where appropriate, and publishes a final rule in the Federal Register with a specific date for when the rule will become effective and enforceable • Reg Map (OMB)

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

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

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

13. 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

14. 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 • Every regulation is first published in the Federal Register (usually as a proposed rule and subsequently as a final rule) • Every final rule is subsequently published in the Code of Federal Regulations

15. 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)

16. 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 and submit 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 • Code of Federal Regulations (FDsys) • Code of Federal Regulations (Legal Information Institute) • Code of Federal Regulations (ProQuest Congressional) • 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

17. 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

18. 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

19. To Find a Regulation • Check the Parallel Table of Authorities and Rules • Retrieve CFR by citation • Search CFR using an appropriate word or term • Look for your regulation by subject (e.g., campaign funds) or by agency (e.g., Federal Elections Commission) • A search in ProQuest Congressional • A search in LexisNexis Academic • Law Review articles (LexisNexis Academic) • For those who chose an early act look at earlier version of CFR – HeinOnline

20. 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)

21. Project 3 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, subsequently, in the Code of Federal Regulations • Make a copy of both and submit them as appendices • Federal Register (FDsys) • Federal Register (ProQuest Congressional) • Federal Register (HeinOnline) • 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

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. Laws Affecting the Process of Rulemaking

24. 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

25. 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

26. Project 3. C • C. Describe some of the changes in the rule since it was first promulgated • 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 – use ProQuest Congressional

27. 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

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

29. 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

30. 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

31. 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”

32. 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?

33. 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?

34. 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

35. 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

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

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

39. Regulatory Process Regulatory Outcome • Proposed. Federal Register • Final. Federal Register • Final. Code of Federal Regulations

40. Rule-making Process • You should work backwards • 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

41. The Ultimate Outcome of the Federal Regulatory Process

42. The Ultimate Outcome of the Federal Regulatory Process

43. 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)

44. 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

45. Federal Aviation Administration • Rule-making • Federal Aviation Regulations (Code of Federal Regulations) • 14 CFR (FDsys) • 91.15   Dropping objects • No pilot in command of a civil aircraft may allow any object to be dropped from that aircraft in flight that creates a hazard to persons or property. However, this section does not prohibit the dropping of any object if reasonable precautions are taken to avoid injury or damage to persons or property • 91.21   Portable electronic devices • (a) Except as provided in paragraph (b) of this section, no person may operate, nor may any operator or pilot in command of an aircraft allow the operation of, any portable electronic device on any of the following U.S.-registered civil aircraft

46. Special Federal Aviation Regulation No. 50–2—Special Flight Rules in the Vicinity of the Grand Canyon National Park, AZ

47. 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 • 16 CFR 1632 (Standards for the Flammability of Mattresses and Mattress Pads)

48. 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

49. Food Safety Modernization Act • Key Facts (FDA) • Food Bill Aims to Improve Safety (FDA) • The FDA Food Safety Modernization Act: Putting Ideas into Action (FDA Jan.27, 2011) • Food Safety Bill Advocates Expect Funding Fight (Food Safety News Jan.4, 2011)

50. Appendix • A. Copy of the relevant rule – Part of a CFR Title (GPO Access, FDsys) • B. Copy of relevant issue of the Federal Register that contains the Final Rule (FDsys, ProQuest Congressional, HeinOnline) • C. Copy of the relevant issue of the Federal Register that contains the Proposed Rule (FDsys, ProQuest Congressional, HeinOnline)