Chapter 5

Part III

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Negotiated Rulemaking

What is reg-neg? How do you set it up? Why do it? Do you still have to do notice and comment? How does notice and comment prevent the agency from

being bound by reg-neg agreements? What is the representation problem in reg-neg? Who got left out in the woodstove reg-neg? Why?

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Executive Orders

What is an executive order? Do they require notice and comment? What if the agency needs a rule to make the

change?

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Federal Executive Orders and 9/11

How does the country respond to disasters that are not anticipated in statutes or regulations?

What can the president do through executive orders, without statutory authorization?

Homeland Security

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SARS and Bioterrorism

What can the state do in an emergency such as a SARS epidemic?

How does the specificity or generality of statutory authority affect this?

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State Executive Orders - What are the Real Limits on State Action?

What would we need to do? Who is going to do it? What is going to pay for it Who is going to get sued for it?

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Regulatory Analysis

What is CBA? Why is CBA sometimes very controversial,

especially for environmental regulations? What is the value of regulatory analysis?

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Cost-benefit and Risk-benefit analysis

What is Justice Breyer's tunnel vision problem?

What was his environmental law example and why does it matter? The cost of removing the last 5% of crap

What about asbestos and brown fields? High tech medicine v. basic preventive

medicine

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What are areas where CBA can have adverse effects?

Do the costs and benefits always fall on the same group?

How does the diffuse and long term nature of benefits complicate CBA?

Should we use CBA for health regulations?

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Following slides are moved to chapter 7, part III.

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Acronyms

OMB - Office of Management and Budget OIRA - Office of Information and Regulatory

Affairs

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Executive Order 12866

OIRA must review rules that have an impact of more than 100M aggregate or substantial impact on a segment of the economy or any thing else.

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The Regulatory Philosophy

Federal agencies should promulgate only such regulations as are required by law, are necessary to interpret the law, or are made necessary by compelling public need, such as material failures of private markets to protect or improve the health and safety of the public, the environment, or the well-being of the American people. In deciding whether and how to regulate, agencies should assess all costs and benefits of available regulatory alternatives, including the alternative of not regulating.

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CBA under 12866

Costs and benefits shall be understood to include both quantifiable measures (to the fullest extent that these can be usefully estimated) and qualitative measures of costs and benefits that are difficult to quantify, but nevertheless essential to consider.

Further, in choosing among alternative regulatory approaches, agencies should select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity), unless a statute requires another regulatory approach.

Pretty simple? :-)

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What must the agency provide OIRA - I

An assessment, including the underlying analysis, of benefits anticipated from the regulatory action (such as, but not limited to, the promotion of the efficient functioning of the economy and private markets, the enhancement of health and safety, the protection of the natural environment, and the elimination or reduction of discrimination or bias) together with, to the extent feasible, a quantification of those benefits;

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What must the agency provide OIRA - II

An assessment, including the underlying analysis, of costs anticipated from the regulatory action (such as, but not limited to, the direct cost both to the government in administering the regulation and to businesses and others in complying with the regulation, and any adverse effects on the efficient functioning of the economy, private markets (including productivity, employment, and competitiveness), health, safety, and the natural environment), together with, to the extent feasible, a quantification of those costs;

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What must the agency provide OIRA - III

An assessment, including the underlying analysis, of costs and benefits of potentially effective and reasonably feasible alternatives to the planned regulation, identified by the agencies or the public (including improving the current regulation and reasonably viable nonregulatory actions), and an explanation why the planned regulatory action is preferable to the identified potential alternatives.

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What are the potential effects on agencies of these mandates?

Does this undermine the intent of their enabling laws?

How can the president do this without legislation?

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12866 and Rulemaking

What if the statute says no CBA - can the president impose it anyway?

Why is there a special provision for analyzing impact on small businesses?

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Unfunded Mandates

What is an unfunded mandate? How is this stealth regulatory reform? Unfunded Mandates Act of 1995 - Agency must do

a CBA if the costs exceed 100M What would be the impact of banning unfunded

mandates? What are the types and impact of unfunded

mandates on public schools?

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End of the chapter!