Negotiated Rulemaking

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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!