§7191 — Title 42 The Public Health and Welfare | U.S. Code

Summary

Federal rulemaking procedures must be used for any rule, regulation, or order made under the Secretary’s legal authority or handed out by the Secretary to other parts of the Department. This also covers rules that state or local agencies make when the Secretary has officially given them the power. If another law transferred to the Department adds extra procedure rules, those extra rules also apply. The same procedures apply to the Commission when it acts under sections 7172(c)(1) or 7172(e). If the Secretary finds a proposed rule has no big question of fact or law and is unlikely to have a large economic effect or affect many people, the rule can move forward under section 553 of title 5. If the Secretary finds a big issue or likely large impact, people must be allowed to give oral views, data, and arguments, and a transcript must be kept. Anyone who would be hurt by the rule can submit evidence asking for that oral chance. The Secretary can waive these steps only if strict timing would likely harm public health, safety, or welfare; the waiver must be explained in detail in the rule and the missed steps must be completed within a reasonable time afterward. Rules that only affect a single local government, a single area inside a State, or a single State are treated as local in effect. Definitions: “unit of local government” = county, city, town, township, village, or similar; “geographic area within a State” = a special district or region used for government purposes. The law does not force hearings beyond what it already requires.

Title 42, §7191

The Public Health and Welfare — Source: USLM XML via OLRC

(a)(1)Subject to the other requirements of this subchapter, the provisions of subchapter II of chapter 5 of title 5 shall apply in accordance with its terms to any rule or regulation, or any order having the applicability and effect of a rule (as defined in section 551(4) of title 5), issued pursuant to authority vested by law in, or transferred or delegated to, the Secretary, or required by this chapter or any other Act to be carried out by any other officer, employee, or component of the Department, other than the Commission, including any such rule, regulation, or order of a State, or local government agency or officer thereof, issued pursuant to authority delegated by the Secretary in accordance with this subchapter. If any provision of any Act, the functions of which are transferred, vested, or delegated pursuant to this chapter, provides administrative procedure requirements in addition to the requirements provided in this subchapter, such additional requirements shall also apply to actions under that provision.

(2)Notwithstanding paragraph (1), this subchapter shall apply to the Commission to the same extent this subchapter applies to the Secretary in the exercise of any of the Commission’s functions under section 7172(c)(1) of this title or which the Secretary has assigned under section 7172(e) of this title.

(b)(1)If the Secretary determines, on his own initiative or in response to any showing made pursuant to paragraph (2) (with respect to a proposed rule, regulation, or order described in subsection (a)) that no substantial issue of fact or law exists and that such rule, regulation, or order is unlikely to have a substantial impact on the Nation’s economy or large numbers of individuals or businesses, such proposed rule, regulation, or order may be promulgated in accordance with section 553 of title 5. If the Secretary determines that a substantial issue of fact or law exists or that such rule, regulation, or order is likely to have a substantial impact on the Nation’s economy or large numbers of individuals or businesses, an opportunity for oral presentation of views, data, and arguments shall be provided.

(2)Any person, who would be adversely affected by the implementation of any proposed rule, regulation, or order who desires an opportunity for oral presentation of views, data, and arguments, may submit material supporting the existence of such substantial issues or such impact.

(3)A transcript shall be kept of any oral presentation with respect to a rule, regulation, or order described in subsection (a).

(c)The requirements of subsection (b) of this section may be waived where strict compliance is found by the Secretary to be likely to cause serious harm or injury to the public health, safety, or welfare, and such finding is set out in detail in such rule, regulation, or order. In the event the requirements of this section are waived, the requirements shall be satisfied within a reasonable period of time subsequent to the promulgation of such rule, regulation, or order.

(d)(1)With respect to any rule, regulation, or order described in subsection (a), the effects of which, except for indirect effects of an inconsequential nature, are confined to—

(A)a single unit of local government or the residents thereof;

(B)a single geographic area within a State or the residents thereof; or

(C)a single State or the residents thereof;

(2)For the purposes of this subsection—

(A)the term “unit of local government” means a county, municipality, town, township, village, or other unit of general government below the State level; and

(B)the term “geographic area within a State” means a special purpose district or other region recognized for governmental purposes within such State which is not a unit of local government.

(3)Nothing in this subsection shall be construed as requiring a hearing or an oral presentation of views where none is required by this section or other provision of law.

(e)Where authorized by any law vested, transferred, or delegated pursuant to this chapter, the Secretary may, by rule, prescribe procedures for State or local government agencies authorized by the Secretary to carry out such functions as may be permitted under applicable law. Such procedures shall apply to such agencies in lieu of this section, and shall require that prior to taking any action, such agencies shall take steps reasonably calculated to provide notice to persons who may be affected by the action, and shall afford an opportunity for presentation of views (including oral presentation of views where practicable) within a reasonable time before taking the action.

Notes & Related Subsidiaries

Editorial Notes

References in Text

This chapter, referred to in subsecs. (a)(1) and (e), was in the original “this Act”, meaning Pub. L. 95–91, Aug. 4, 1977, 91 Stat. 565, known as the Department of Energy Organization Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see

Short Title

note set out under section 7101 of this title and Tables.

Amendments

1997—Subsec. (b). Pub. L. 105–28, § 2(a)(1), (2), redesignated subsec. (c) as (b) and struck out former subsec. (b) which read as follows: “(1) In addition to the requirements of subsection (a) of this section, notice of any proposed rule, regulation, or order described in subsection (a) of this section shall be given by publication of such proposed rule, regulation, or order in the Federal Register. Such publication shall be accompanied by a statement of the research, analysis, and other available information in support of, the need for, and the probable effect of, any such proposed rule, regulation, or order. Other effective means of publicity shall be utilized as may be reasonably calculated to notify concerned or affected persons of the nature and probable effect of any such proposed rule, regulation, or order. In each case, a minimum of thirty days following such publication shall be provided for an opportunity to comment prior to promulgation of any such rule, regulation, or order. “(2) Public notice of all rules,

Regulations

, or orders described in subsection (a) of this section which are promulgated by officers of a State or local government agency pursuant to a delegation under this chapter shall be provided by publication of such proposed rules,

Regulations

, or orders in at least two newspapers of statewide circulation. If such publication is not practicable, notice of any such rule, regulation, or order shall be given by such other means as the officer promulgating such rule, regulation, or order determines will reasonably assure wide public notice. “(3) For the purposes of this subchapter, the exception from the requirements of section 553 of title 5 provided by subsection (a)(2) of such section with respect to public property, loans, grants, or contracts shall not be available.” Subsec. (c). Pub. L. 105–28, § 2(a)(2), (3), redesignated subsec. (e) as (c) and substituted “subsection (b)” for “subsections (b), (c), and (d)”. Former subsec. (c) redesignated (b). Subsec. (d). Pub. L. 105–28, § 2(a)(1), (2), redesignated subsec. (f) as (d) and struck out former subsec. (d) which read as follows: “Following the notice and comment period, including any oral presentation required by this subsection, the Secretary may promulgate a rule if the rule is accompanied by an explanation responding to the major comments, criticisms, and alternatives offered during the comment period.” Subsecs. (e) to (g). Pub. L. 105–28, § 2(a)(2), redesignated subsecs. (e) to (g) as (c) to (e), respectively.

§7191 Procedures for issuance of rules, regulations, or orders

Summary

Title 42, §7191

Notes & Related Subsidiaries

Editorial Notes

References in Text

Short Title

Amendments

Regulations

Regulations

Citations & Metadata