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    QUESTION PART 1: What defines an item as a Statutory versus a Regulatory requirement? QUESTION PART 2: Is the Navy Training System Plan (NTSP) a statutory or regulatory requirement?


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    The question here is what is the difference between a statutory requirement and a regulatory requirement. The fundamental difference is that statutes are enacted by Congress (and signed into law by the President) whereas regulations are issued by executive agencies in order to implement statutes enacted by Congress. The regulations must be consistent with the enabling statute and the agency must follow the rule making process of the Administrative Procedures Act (publication of proposed regulation, public comment, final regulation). Regulations have the "force and effect of law," meaning they are just as enforceable as statutes.

    Therefore, whether a requirement flows directly from a statute or whether it flows from a regulation implementing a statute makes no practical difference to personnel who are implementing Instructions such as those cited in the question here.

    In this instance the Secretary of the Navy Instruction 5000.2C (SECNAVINST 5000.2C), entitled IMPLEMENTATION AND OPERATION OF THE DEFENSE ACQUISITION SYSTEM AND THE JOINT CAPABILITIES INTEGRATION AND DEVELOPMENT SYSTEM lists the requirement for Naval Training System Plans (NTSP) in a table titled Regulatory Information and Milestone Requirement and provides a footnote that the details of NTSP can be found in OPNACINST 1500.76B, which is the Chief of Naval Operations’ Instruction on NAVAL TRAINING SYSTEMS REQUIREMENTS, ACQUISITION, AND MANAGEMENT.

    The detailed 1500.76B instruction lists 25 references, each of which has its own multiple references, many of which ultimately trace back to statutes and/or regulations. Tracing back through the multiple levels to those statutes and their implementing regulations is beyond the scope of Ask a Professor. Also, ultimately all regulations are traceable back to their enabling statute(s). Thus the question of whether the NTSP requirement derives from statute or from regulation becomes an exercise in circular logic. As stated above, for personnel who are implementing instructions, it makes no difference. In a situation where a party is calling into question that validity of a regulation, it would be necessary to dig into the legislative/regulatory history. But if that is your situation, you need to consult with legal counsel assigned to your activity.

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