Chapter 5
Part III
Negotiated Rulemaking
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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
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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
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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
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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?
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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
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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
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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?
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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
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OMB - Office of Management and Budget
OIRA - Office of Information and Regulatory
Affairs
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Executive Order 12866
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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
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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
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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
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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
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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
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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?
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Does this undermine the intent of their enabling
laws?
How can the president do this without legislation?
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12866 and Rulemaking
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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
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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!
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