Regulatory Insight

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Regulatory histories associated with a public law are compilations of Federal Register (FR) notices, proposed rules, and rules representing the complete rulemaking process associated with specific Public Laws or Executive Orders. These histories are compiled by human researchers. 

The first thing that happens is that all FR articles that mention a law specifically by citation, short title, popular name, cited act or any other way that refers specifically to the law are brought together for review by the researcher who examines each article to determine whether or not it is directly associated with the law. All rulemaking FR articles published following the date of enactment of a law are included in a regulatory history, as well as any other articles associated with said rulemaking. An article which says something like “P.L. 111-XYZ was enacted since this rulemaking began, but was not considered in the making of this rule” would obviously not be included, but many things are taken into account as the decision to include/exclude is made.

In addition to consulting the text of the Federal Register articles, researchers check such sources as the Code of Federal Regulations (CFR),  the Public Law text, and, at times, the Parallel Table of  Authorities and Rules.

Once the history is compiled, the editorial team reviews the compilation for accuracy.

Laws enacted in response to a Regulation

There are also regulatory histories of laws which are being enacted in response to a regulation in and of itself, but does not change or narrow the scope of the law itself. Rather the public law simply rejects the Executive Branch’s regulation, without then giving further instructions on the law’s implementation.

Situation #1:

Law A is enacted (because a bill is signed) - Regulation is promulgated at 81 FR 49359

Law B is enacted (Joint resolution is approved) repealing rule promulgated  at 81 FR 49359

Here the law is referring to specific regulation, not to a provision of a law and then citing a regulation which originated from said provision. Instead of amending or repealing the previous law, the new public law is rejecting the Executive Branch’s implementation of the law, without changing the law itself. The new public law is in response to the regulation itself.

In this instance, we will include the FR rule cited (even though it is from before the date of enactment).

• History of Law A will include ALL proposed rules and final rules related to the cited FR as it relates to the implementation of law A
• History of Law B will include ONLY the cited rule in the public law text.

Situation #2:

Law C is enacted (because a bill is signed) - Regulation is promulgated at XX FR XXXX

Law D is enacted (because a bill us signed) repealing provisions (not specific regulations) of Law C (and therefore invalidating all of the regulations related to those provisions).  

SEC. 2. EXEMPT SUPPLIES. Section 325(u) of the Energy Policy and Conservation Act (42 U.S.C. 6295(u)) is amended by adding at the end the following: ‘‘(5) EXEMPT SUPPLIES.— ‘‘(A) FEBRUARY 10, 2014, RULE.— ‘‘(i) IN GENERAL.—An external power supply shall not be subject to the final rule entitled ‘Energy Conservation Program: Energy Conservation Standards for External Power Supplies’, published at 79 Fed. Reg. 7845 (February 10, 2014), if the external power supply—

Although this public law references a specific regulation by an exact citation, the law is amending a prior public law and giving precise instructions on how that public law is to be implemented by referencing regulations (79 Fed. Reg. 7845 shall not apply). As such, this history is treated as an amendment to the prior law, meaning we would expect the history for the Energy Policy and Conservation Act to contain this final rule and any related proposed rules. We would expect to find in PL113-263’s history any new regulations which come out of this amendment, including changes to the rule found at 79 Fed. Reg. 7845. Only FR articles cited after the date of enactment will be include in the history for law D, even though it cites a rule prior to its enactment.

In this instance, we will exclude the FR rule cited.

• History of Law C will include ALL proposed rules and final rules related to the cited FR as it relates to the implementation of law A
• History of Law D will NOT include the rule cited in the public law text, but only those regulations which follow the enactment and are promulgated by the public law.