Preemption: Obama Signals a Change in Federal Rulemaking
In a memorandum to heads of executive departments and agencies, President Obama stated his administration’s policy “that preemption of State law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption.” He instructed the heads of departments and agencies to review regulations issued within the past 10 years that are intended to preempt State law in order to determine whether the statements or provisions are justified under applicable legal principles governing preemption. The department or agency head should consider amending the regulation if preemption cannot be justified.
Federal Register: May 22, 2009 (Volume 74, Number 98)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
To learn more about the federal rulemaking process see:
- Understanding the Regulatory Process: Working with Federal Regulatory Agencies, a live program in Washington, DC, October 20, 2009
- Understanding the Regulatory Process Series, a Capitol Learning Audio Course
- The Federal Regulatory Process: Piecing Together the Regulatory Puzzle, a Capitol Learning Audio Course
- Federal Regulatory Process Poster, by Ken Ackerman
Regulatory Research Resources
- Regulations.gov - ”Your one stop site to comment on federal regulations.” (From the GPO)
- Statutes related to the regulatory process - from the National Archives and Records Administration
- Code of Federal Regulations (GPO Access) (April 1996-
- Code of Federal Regulations (Cornell Legal Information Institute)
- Federal Register Vol. 59 (1994) no field/identifiers Vol. 60 (1995 -
- List of CFR Sections Affected (GPO Access) (January 1997 -
- Semiannual Regulatory Agenda (Unified Agenda) (GPO Access) (1994 -
- Executive Orders
- Code of Federal Regulations - Title 3 (GPO Access)
- Codification of Presidential Proclamations and Executive Orders (U.S. National Archives and Records Administration) April 13, 1945 - January 20, 1989
- Executive Orders (White House)
- Executive Orders Disposition Tables (U.S. National Archives and Records Administration) January 24, 1953 to present
- Federal Register (GPO Access)
- Code of Federal Regulations - Title 3 (GPO Access)
- Public Papers of the Presidents of the United States (GPO Access) (1995 -
- Weekly Compilation of Presidential Documents (GPO Access) Vol. 29 (1993-
- United States Government Manual (GPO Access)
"Lobbying for Locality Pay"
Some federal employees may have eyed their counterparts in Raleigh, N.C., covetously this year when workers there captured a 5.62 percent pay hike.
What's the Raleigh secret? The city, along with Phoenix and Buffalo, N.Y., were marked for the first time to receive special locality payments as part of their yearly raise. They were taken out of the "Rest of U.S." category for locality pay -- which this year received a 2.83 percent increase -- and were paid according to the labor market in their area.
. . .
What does a successful lobbying effort for locality pay entail? According to Kim Ainsworth, executive director of the Greater Boston Federal Executive Board, it takes a close eye on the Federal Register, patience, a dash of political savvy and thorough research.
"Lobbying for Locality Pay," by Karen Rutzick, GovExec.com, January 19, 2006
FEC Advisory Opinion 2005-16
Election Law blog reports that "the FEC approved by a 5-0 vote Advisory Opinion 2005-16."
The opinion gives an election-related website (or blog) with a definite partisan position the ability to claim the same exemption from certain campaign finance laws that the mainstream press may claim when reporting or editorializing on election-related issues.
"Significant FEC Advisory Opinion Gives Breathing Room for Election-Related Blogging, For Now," Election Law, November 18, 2005
Fired Up! LLC, a for-profit entity formed in Missouri that owns and operates Internet websites, sought the Commission's opinion on whether the costs of the materials published on its websites are covered by the press exemption and thus would not be considered contributions or expenditures under the Act. The draft Opinion concluded that the press exemption would apply.
"Summary of 11/17/05 FEC Meeting," More Soft Money Hard Law, November 17, 2005
This is a tremendous victory for online free speech and will impact on the current debate in Congress. Kudos to Marc Elias and Brian Svoboda of the Perkins Coie law firm who are responsible, as well as the five FEC Commissioners who understood that neither the First Amendment, the statutes nor common sense could tolerate a different result.
"FEC: Blogs Are As Much "Press" As Everyone Else," RedState.org, November 17, 2005
- "FEC Characterizes Blogs As Media," Beltway Blogroll, November 17, 2005
- FEC Advisory Opinion 2005-16 (13-page pdf)
- Initial request for Advisory Opinion on behalf of Fired Up, August 22, 2005 (34-page pdf)
- Comment from Democracy 21, the Campaign Legal Center and the Center for Responsive Politics (4-page pdf)
- Campaign Legal Center
- Center for Responsive Politics
- Fired Up America
- "A Setback For Bloggers" - H.R. 1605 - Hobnob Blog, November 6, 2005
Telecommuting and Federal Agencies
One of the biggest advocates for telecommuting intends to keep the pressure on federal agencies next year.
Rep. Frank R. Wolf (R-Va.), chairman of a House Appropriations subcommittee, has included a provision in a spending bill to require certain agencies to prove that more of their employees are telecommuting or risk losing $5 million.
. . .
The [House Government Reform Subcommittee on the Federal Workforce and Agency Organization] estimates that the federal workforce uses 31.1 million gallons of gasoline each week, and Porter is interested in looking at ways to get workers out of their cars.
"Wolf Again Putting Pressure on Agencies to Increase Telecommuting," by Stephen Barr, The Washington Post, November 16, 2005
"Agencies Required To Prove Increase In Telecommuters Or Risk Losing Funding," Press Release from Office of Frank Wolf (R-VA), November 9, 2005
- "Mitigating the Impact of High Gas Prices on the American Workforce," hearing by the Subcommittee on the Federal Workforce and Agency Organization, November 16, 2005
- Interagency Telework Page - from OPM and GSA
- "Federal telework programs slow to catch on, despite agency efforts," by Tanya N. Ballard, GovExec.com, October 6, 2005
- "Telework push fueled by Hurricane Katrina," by Danielle Belopotosky, National Journal's Technology Daily, September 6, 2005
- "Telework stuck in the slow lane: Few managers approve, but those who try it like it," by Tichakorn Hill, Federal Times, August 8, 2005
- "Telework in the Federal Government," The Future of Work Weblog, August 3, 2005
- "Making Telework a Federal Priority," Cyber Security Industry Alliance (CSIA), July 2005 (12-page pdf)
- "Survey: U.S. federal workers lack telecommuting choices," by Grant Gross, IDG News Service, February 3, 2005
- GAO Reports
- "GAO-05-1055R Agency Telework Methodologies: Departments of Commerce, Justice, State, the Small Business Administration, and the Securities and Exchange Commission," September 27, 2005 (41-page pdf)
- "GAO-04-950T Human Capital: Key Practices to Increasing Federal Telework," Testimony before the Committee on Government Reform, (13-page pdf)
- State Statutes Pertaining to State Employee Telecommuting - from NCSL
- State Statutes Citing Telecommuting - from the University of South Florida
"Prepackaged News Story Announcement Act" - S. 967
In a little noticed development Thursday, the Senate Commerce Committee approved the "Prepackaged News Story Announcement Act," legislation requiring "that all prepackaged, government-produced news stories - which are designed to be indistinguishable from those created by independent news organizations - include disclaimers notifying the audience that the government produced or funded the news segment." The bill will now be considered by the full Senate.
"Calling Out 'Propaganda'," PublicEye, October 22, 2005
The Washington Post editorial of yesterday, discussed here, draws a familiar distinction, between blogging and other activities on the Internet, that those arguing for regulation have come to rely on. They have been arguing that blogging of some kind should be protected, but that the remaining territory of the Internet is fair game. Their defense of the blogger is not entirely unqualified, since it has been proposed that bloggers’ immunity from regulation end with any active engagement with candidates or parties, such as in accepting money from them. There is also the ominous suggestion that blogging, while needing protection, should be "defined." Overall, however, the blogger is the object of much solicitude, since she represents in this debate the unimpeachable value of individual self-expression. The general sense of blogging—its very personal uses by a large and growing part of the population—is nicely captured in an article also appearing in this morning’s Washington Post. Yiku Noguchi, "Cyber-Catharsis: Bloggers Use Web Sites as Therapy," Washington Post (Oct. 12, 2005) at A1.
"Cyber Loophole II: 'Blogging'," by Bob Bauer, More Soft Money Hard Law, October 12, 2005