Regulatory History Peter A. Hook Electronic Services Librarian Indiana University Maurer School of Law — Bloomington Process & Documents Prof. Barnes B595: AEP (Advanced Environmental Practice) January 27, 2009 Jennifer Bryan Morgan Government Documents Librarian Indiana University Maurer School of Law — Bloomington

Part 1: Process and Resultant Documents

“Developing Regulations: From Start to Finish” (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.”Clean Air Act Clean Water Act “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.

68 Fed. Reg. 1660, 1663 CAA = Clean Air Act HAP = Hazardous Air Pollutants Enabling Statute

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 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 4 th floor. For more details, search IUCAT or refer to the online research guide, “Regulatory History.”IUCATRegulatory 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 ), prior history can be found in 60 FR

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 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.”IUCATRegulatory History Online: GPO Access (1994- ), HeinOnline (Inception, ), 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.”Document Drafting Handbook “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)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)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

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

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 ( 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, dy=electronic_resources/regulatory_history.asp (rev. Sept. 2006) (last visited Feb. 23, 2009). Developing Regulations: From Start to Finish, EPA, (last visited Feb. 23, 2009) (Copy on file with the authors). Federal Regulatory History, Santa Clara Law Library, 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, (rev. Oct. 2004) (last visited Feb. 23, 2009).