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How Federal Regulation Worked Until Today [1]

['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.']

Date: 2024-06-28  

I worked for the Customs Service (Customs & Border Protection after 2002) from 1989 to 2015. During my 26 years of federal employment, I drafted and shepherded through a number of regulations. Although I can only speak for Customs regulations, my experience may be relevant to the regulatory process of other federal agencies.

Under the Administrative Procedures Act of 1946 (APA) agencies must first publish the proposed regulation in the Federal Register, allow the “public” x number of days to comment, and provide the name and phone number of the contact person. In my ample experience with writing regulations, the “public” really meant corporations doing the importing, but anyone can write in a comment. I never saw one from anyone other than a corporate importer or their attorney.

Our job was to assemble the comments and publish a summary of them with the agency response and then publish the final regulation. The agency must try to accommodate the concerns expressed in the comment wherever possible. In other words, we were not pointy headed bureaucrats harassing business, but rather we worked with business. In every regulation I helped to draft, the public comments caused us to modify the original proposed regulation.

We also participated in the drafting of legislation. Again, we worked with the importers to reach mutually acceptable legislation. There is so much legislation passed that the average congressman could care less about much less understand, so our legislation was always passed unanimously by voice votes once the Senate and House Ways and Means Chairmen were satisfied we and business were on board. We and the importers also drafted the committee reports that explained the intent of the legislation.

I should note that our cases are heard by the Court of International Trade in New York. The judges are supposed to be experts on Customs law. We disagreed with many of the court’s decisions, but the court always rigorously followed Chevron and I don’t recall the court overturning or misconstruing any regulation, but followed our regulation as they were written. This was more than the “due deference” Chevron required.

This decision today is a disaster.

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