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SOME LEGAL CONSIDERATIONS -STATUTES AND REGULATIONS
here do all these laws come from and how are regulations created?
Disclaimer: I am not an attorney. I am an engineer. This is not legal advice. Only a lawyer can give you legal advice. All of the following is based on my own experience and education. It is very general in nature. Many laws concerning running a business vary from state to state. It is your responsibility to find out what the laws are in your state or city. Any errors or omissions on my part do not relieve you from your obligation to operate your business legally. Where possible I have put links to web sites that contain information about the subject. However, you should consult an attorney for specific details of the laws applicable where your business is located. What is said here applies only to the USA. If you are in another country you need to talk to someone who knows the laws in your country.
I was listening to NPR radio the other day, and they were discussing IRS regulations, and it occurred to me that even the commentator didn't have a good understanding of the difference between Federal Statutes, commonly called Federal Laws, and regulations, also called Federal Laws. There is a distinct difference and a major difference in how they are created and enforced. If you ask your friends and neighbors you will probably find that most people have no idea how laws are created other than that Congress passes them and the President signs them. Which is about as close as most Americans get to understanding the legislative process. In the case of the boating laws in this country I have heard so many outright falsehoods, and answered so many questions about, not only what is the law, but why, that I thought it would be good to present a discussion on how all of this comes about.
It all starts with an idea. Someone, it can be anyone, a citizen, a politician, a group of people, the President, whoever, forms an idea that there ought to be a law about something. This idea is then proposed to either a Representative or a Senator. After much research to see if this is already covered, or has been already addressed in some way, or if it even rises to the level of Federal Jurisdiction, then a proposed bill is drafted. A Representative or Senator has to be the sponsor, preferably getting more sponsors if possible. No sponsors, no bill. The more sponsors the better. It is then introduced to the committee that handles that particular subject. The House and Senate have many committees. Each one handles a different subject. The best known are the Ways and Means committees of the House and Senate that handle appropriations. The committee then considers it, makes any necessary changes and the committee votes on whether or not to move it to the floor of the House or Senate for debate. A bill can die in committee, or upon objection by even one member be held in committee forever. It can be moved out of committee by a forced vote but this is rarely done.
Once it reaches the floor of the House or Senate, and it is often introduced to both houses at the same time, it is then debated, more changes made, amendments added, and eventually voted on. It can also die on the floor or be kept on the schedule for very long periods of time, never reaching debate, or a vote. If both houses pass it, then a joint committee is formed of members of both houses and the differences between the House version and the Senate version are corrected and the final bill voted on. If passed again by both it goes to the President who can; sign it, veto it, or pocket veto, which simply means take no action on it whatsoever, and it dies.
If he signs it, it becomes a Statute, or law. The Statute then becomes part of the United States Code. It is re-codified, that is, assigned a Title number and Chapter number in the US Code based on the subject matter, and divided into subchapters and sections. For instance, The Federal Boat Safety Act of 1971, has been re-codified as Title 46 - Shipping - United States Code, Chapter 43 - Recreational Vessels. Under that are sections each starting with the number of the Chapter. This statute runs from section 4301 to 4311.
Acts, or Statutes, rarely spell out the details of what Congress wants done. They give the intent of Congress, assign the responsibility for enforcement to a specific branch of government and make provisions for penalties. If money is needed, a separate appropriations bill has to be passed. If it is not passed, no action can be taken to implement the Statute.
The details are left up to the Executive Branch, usually to a particular agency under a specific Secretary. In the case of the Boat Safety Act, it was assigned to the Coast Guard but is worded this way, The Secretary may prescribe regulations........ So technically, the responsibility is to the Secretary of the Department, but the actual implementation the law is left to the agency, in this case the Coast Guard.
This is where the regulatory process begins. In Title 46 USC 4302 - Regulations, it says:
So, the agency, in this case the Coast Guard, must figure out what regulations are needed to carry out the intent of Congress. It not only directs them to prescribe regulations, it says they must be the minimum, they must meet the need for safety and must be in terms of performance. It goes on to say that the Coast Guard must look at relevant information such as research, statistics, studies, etc., to establish that here is a need for the regulation, and that it can't be retroactive, in other words, not make someone spend a lot of money to bring an old boat up to the new standard. After all of that, they have to submit the proposed regulation to The National Boating Safety Advisory Council. This committee is made up of people from the industry, from the boating community, and other boating related activities, and are appointed by the President. It is not an oversight committee. It's purpose is to advise the Coast Guard. The Coast Guard doesn't have to accept their advice, but generally does.
After all of this, it does not just become a regulation. First the Coast Guard must publish it as an Advanced Notice of Proposed Rule Making. In other words they must publish a notice that they want to make a rule, and here is the rule, and why. Then they must take public comment. The comment period can be anything from 90 to 180 days, and occasionally longer. All comments received must be considered and responded to. They can also hold public hearings if they feel there is a necessity to get direct comments. These are held all over the country.
Then if they feel it is still a go, they publish a Notice of Proposed Rule Making, usually incorporating the changes made because of the comments. Many proposed regulations have never gotten beyond this point simply because the public was vehemently opposed to it. But again, there is another public comment period.
Finally the Notice of Final Rule Making is published with the text of the final rule. A date is published for when the rule will go into effect, usually no less than 180 days in the future, but often a year or more. At this point it becomes part of a separate body of laws called the Code of Federal Regulations. For the regulations click on this link
As far as enforcement goes, provisions are made in the original Statute for handling penalties. Most of these are what are called administrative penalties, that is they never go to court. They are handled by the Coast Guard. You are notified by the agency of a violation and the possible fine. A hearing officer is assigned and the hearing officer reviews the case and assigns a penalty. You have the right to present your case to the hearing officer, or to just pay the fine. There are rights of appeal as well.
However, if the violation is serious enough it can rise to the level of the Federal Attorneys who will, if they feel it is necessary, prosecute it in Federal court. This very rarely happens in boating cases.
So to recap: Congress passes an Act, which becomes a Statute in the United States Code. This Statute tells the agency what Congress wants them to do. The Coast Guard, acting under the authority of the Statute, writes regulations, which then become part of the Code of Federal Regulations. The Code of Federal Regulations are then the group of laws you and I must abide by. This process is the same for the EPA, IRS, FAA or any other regulatory agency. So when people talk about tax codes, they are talking about Federal regulations. When they talk about boating laws, they are talking about Federal regulations, but all of these regulations come from authority given to the agency by Congress when they pass an act.
Just a note to confuse the issue: There are some laws in the US Code that apply directly to you and me. That is, they pass a specific law, make an agency responsible for enforcing it, and that's it. There are no implementing regulations. But in general they are the exception.
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