Tracking Changes to EHS Codes, Statutes and Rules in the United States

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We recently attended a webinar by BillTrack50 and MOB Advocacy. BillTrack50 helps companies track bills and changes in the US. MOB Advocacy helps formulate responses and work to get your organization’s voice heard in the legislative process. A summary of their webinar can be found here. Here is our take on the webinar and US regulatory issues!

The regulatory landscape in the United States can be summarized as:

  1. Bills get introduced by elected Legislatures and become Statutes
  2. Rules get introduced by government regulatory bodies and become Administrative Codes

Legislative and Regulatory Publication Systems

Whichever state in the U.S. you operate in, you need to take a close look at their publication system and understand what you can do to efficiently stay informed. There are 50 states to deal with, making tracking and complying quite challenging. According to our work and the work of BillTrack50, 2 states do a very good job in their publications and 48 states do it to various degrees, from OK to really bad! Georgia probably takes the cake in terms of difficulty as it has privatized their Statutes and Administrative codes. This goes contrary to the basic tenet that the law needs to be available if we expect people to comply.

On the other end of the spectrum, Nebraska and Iowa publish a clear and legible table of the regulatory process and help you know what part of the process a change is currently in. A middle of the road state New Mexico, who like many states (e.g. Arizona, Texas, North Carolina, Oregon,…), publishes a register in a PDF format that includes proposed changes and comments. See a sample register here, it is simply a document with proposed and adopted changes. Most countries do not publish all the comments they receive during a legislative change. In this regard, the US is a good example of transparency in the legislative process.

Bills vs. Rules

Bills follow a fairly linear process. They get introduced, commented on, go through committees and become law (or not). Regulations are much more difficult to predict. They can be written, commented on and adopted in a seemingly sporadic way that makes it hard to predict when and how they come into effect. The only way to tackle this challenge is to build a tracking and compliance system that can respond quickly to emerging issues and bring people into the fold that can help bring about your desired outcome.

When you do decide to track proposed changes and issues proactively, you may want to track regulations with broader terms than you would for legislative tracking. For example, you may search for terms related to Oil Wells in general for regulations, but then track for specific changes to any reference to a law that regulates Oil Well activities. You never know how a regulation may impact you and regulations can cut across industries, going broader allows you to catch things you may miss. Legislation tends to stick closer to certain terminology and acronyms and can be easier to track.

Start Early and Work Both Sides

When you are trying to get a head start on a regulatory change, there are a few key things to remember. You can start at the top or at the bottom of the government administration, or both at the same time. Your organization likely wants to try and influence the political process by heading to the Governors conference. You can also attend Association meetings and regulatory meetings. Combining these two initiatives can be very productive. The people that legislators tend to listen to most is not companies, but rather the regulators who are typically career government servants. Get the regulators leaning to your side and the legislatures will shift.

If you want to get ahead of multi-state efforts and tackle issues before a general document or standard gets adopted, you must attend regulatory groups and associations meetings. This would allow you to impact multiple states at once as the associations or groups usually publish standard codes and documents that states use to inform their proposed changes.  If you miss the early opportunity and a regulatory issue might balloon and enter the various state legislatures. You will then find yourself fighting a rule in 20 or 30 states – making your life a lot harder.

Influencing Regulatory Change

The webinar emphasized the importance of integrating the compliance and advocacy teams. You want to make sure your compliance and lobbying/regulatory affairs team is talking to each other on an ongoing basis. At Nimonik, we see that a number of our clients have seperated their regulatory affairs office from their operational compliance office. This can lead to a number of issues.

Lobbying advocates talk to high level legislative or regulatory people – politicians, governors, heads of regulatory bodies. Operational compliance people typically talk to the folks dealing with regulations on a day to day basis. By ensuring your team uses the same messaging with both the people working on policy and the people applying it, you will see more angles and strategies to influence the regulatory issues you face. It is key to build relationships at all levels of the regulatory system. You must have relationships at different agencies for rules and with committees for legislation and statutes.

Additionally, by keeping your operational and higher level compliance teams together or in close communication, you are more likely to stay on message and avoid contradicting yourself. At best, errors in messaging make you look unorganized and at worst it makes you look dishonest or disingenuous. No organization wants to come across as either disorganized or disingenuous.

Remember, you can rely on associations, they are your ally until they disappear or move onto another issue. If you are serious about regulatory issues, you need to be involved head on as well as through the appropriate associations.

Another big message in the webinar was : DO NOT MISS DEADLINES. Proposed regulatory or legislative changes are managed by lawyers and public servants who take deadlines very seriously. Miss your deadline, you miss your chance to have your say. And having your say is important – even if you do not win. Because comments are public in the United States, they can become a key piece of evidence if your organization or association decides to sue the state afterwards. Comments who you tried affect a change, but were ignored.

In conclusion, we can safely state that tracking changes to legislation, regulations, codes and statutes in the United States is very tough. Using tools such as Nimonik and BillTrack50 will help. Yet, tools along cannot solve your lobbying and compliance problems – you must coordinate internally and ensure you speak to the right people in government, have consistent messaging and regularly follow-up on commenting periods and industry and government meetings. Best of luck and let us know if you have any compliance war stories.