administrative law research instructional aids series

ADMINISTRATIVE LAW RESEARCH

INSTRUCTIONAL AIDS SERIES

Contents

• Introduction: The Role of Agencies

• Federal Register

• Code of Federal Regulations (CFR)

• Federal Administrative (Agency) Decisions

Introduction:The Role of Agencies

Three Sources of the Law

• Legislative

• Judicial

• Executive

– President

– Cabinet

– Administrative Agencies• are established by legislatures, agencies and are usually

organized under the executive branch of government, often associated with a Cabinet position

• conduct legislative, executive, and judicial types of activities• exist on both federal and state levels (We will use the federal

system as the paradigm for state agencies.)

Introduction

• Examples of executive branch agencies:

– Environmental Protection Agency

– Department of Transportation

– Federal Reserve Board

– Department of Agriculture

– United States Postal Service

– Department of Veterans’ Affairs

– Federal Aviation Administration

• Because of the scope of Congressional delegation of authority, each agency is unique in its structure, its personnel, and the nature of its regulations.

Unless talking about a specific agency, administrative agencies’ regulations and decisions must be discussed in broad generalizations.

Introduction

Independent Administrative Agencies: The Fourth Branch of Government?

• There are also agencies that are created by Congress as part of the executive branch but are not under the direct control of the president.

• Many of these are independent regulatory commissions.

• The president appoints, but cannot remove commissioners except for causes specified under the enabling statute.

• These agencies are often called the “headless fourth branch” of government.

Introduction

• Examples of regulatory commissions are the

– Civil Aeronautics Board

– Equal Employment Opportunity Commission

– Federal Trade Commission

– National Labor Relations Board

– Nuclear Regulatory Commission

– Securities and Exchange Commission

– Federal Energy Regulatory Commission

– Federal Deposit Insurance Corporation

– Federal Communications Commission

Introduction

An administrative agency may be called a

– Board• National Labor Relations Board

– Commission• Federal Communications Commission

– Corporation• Federal Deposit Insurance Corporation

– Authority• Tennessee Valley Authority

– Department• Department of Transportation

– Administration• Social Security Administration

– Agency• Environmental Protection Agency

Introduction

Role of Administrative Agencies• Legislative: Granted rulemaking authority

– Congress delegates authority to promulgate regulations to administrative agencies• Enact enabling statutes• Establish the scope of agency authority

– Presidential Executive Order may also delegate authority to promulgate regulations to administrative agencies.

• Judicial: Congress may also grant power to hear and settle disputes arising from the regulation or the enabling statute.

• Executive: Congress may also grant power to investigate and prosecute violators of regulations.

Introduction

Role of Administrative Agencies

The Securities and Exchange Commission is an example of an agency with powers similar to those of all three branches of government

– Legislative: promulgates regulations governing what information must be given to investors.

– Judicial: conducts hearings to determine guilt and mete out punishment to violators of these regulations.

– Executive: enforces these regulations by prosecuting violators by disciplinary actions and stop orders.

Introduction

Role of Administrative Agencies

Outcomes of agency actions include:

– Rules or regulations (the two words are used interchangeably), which have the same effect as statutes

– Licenses, which include permits, certificates, other types of permission

– Advisory opinions, which are authoritative interpretations of statutes and regulation but are not binding

– Orders, which are the final disposition of any agency action, other than rulemaking

– Decisions, which adjudicate controversies arising out of the interpretation of statutes or regulations; they are issued in the same manner as court decisions

Introduction

STATUTES

• Passed by Congress

• Provide for broad social and economic goals and legal requirements

• Get their power from the Constitution

• Reviewed by courts for constitutionality

• Representative democracy- Congress acts to represent the will of the people

REGULATIONS

• Issued by agencies

• Get their power from Congress

• Prescribe specific legal requirements to meet congressional goals

• Reviewed by courts to determine constitutionality, limits of delegated authority, and whether they are arbitrary and capricious

• Participatory democracy – agencies must seek and consider public comment

Comparison of the Roles of Statutes and RegulationsIntroduction

The Process of Promulgating Regulations (Rulemaking) The initiative behind promulgation of a new regulation or a change in a

regulation can originate from many sources, including

– legislation that delegates authority

– congressional hearings and reports

– court orders

– Executive Orders and Office of Management and Budget Circulars

– agency acting on its own initiative

– emergency situations, technological developments, etc.

– political pressures

– Federal Advisory Committee recommendations

– petitions and informal requests from affected parties

Introduction

Rulemaking Process

• Regulation is proposed

• Office of Management and Budget reviews under Executive Order 12866

• Proposed rule is published in the Federal Register

• Public comment is invited

• Office of Management and Budget re-reviews regulation

• Final regulation published in the Federal Register

Introduction

Rulemaking Process• Final regulation published in the Federal Register

– Responds to comment

– Amends Code of Federal Regulations

– Sets effective date• 30-day minimum for most regulations• 60-day minimum for major regulations• No minimum for good cause• Agency may delay or withdraw regulation before it

becomes effective

• Agency submits regulation to Congress and Government Accounting Office, which can nullify the regulation

• Regulation is placed in Code of Federal Regulations (CFR)

Introduction

Federal Register

Background

• Federal legislation in the 1930s began addressing numerous economic and social problems.

• Federal agencies were created to formulate the regulations that were to implement congressional intent.

• The public needed notice of the regulations that would help govern their lives as these new regulations went into effect.

• Courts began to rule that these “secret laws” were a violation of right of due process under the Constitution.

• A centralized filing and publication system was needed.

The Federal Register Act

• The Federal Register Act was enacted July 26, 1935.

• The Federal Register Act is codified in Title 44, Chapter 15, of the United States Code Annotated®(USCA®).

• It provides for a daily Federal Register to publish executive agency regulations and notices and presidential documents.

• The act was amended in 1937 to create Code of Federal Regulations, which arranges the regulations by government agency.

Publication in the Federal Register

– Provides official notice of a regulation’s existence, contents, and legal effect (constructive notice)

– Establishes the Federal Register text as true copy of original signed document

– Specifies the legal authority of the agency

– Gives regulations evidentiary status so they are admissible in court

– Shows how and why the Code of Federal Regulations will be amended

Federal Register

The Administrative Procedure Act

• The Administrative Procedure Act (APA) was enacted June 11, 1946.

• The APA is codified in Title 5 of the USCA, sections 551, et seq.

• The APA provides that due process and public participation requirements must be met in the promulgation of a new regulation as published in the Federal Register.

Federal Register

The Administrative Procedure Act

Due process and public participation requirements

– Must give notice of proposed rule

– Must take public comments and respond in final rule

– Regulations cannot be enforced if not published in the Federal Register

– Regulations cannot be effective until 30 days after publication

– Must publish statements of the organization and procedure for whom to contact for comment in the agency

– Must state the legal basis and purpose of the regulation

Federal Register

Federal Register

• Published every week-day, except on federal holidays

• All daily issues from a year constitute a single volume with consecutive pagination throughout the year

• A single issue contains about 300 pages

• Annual volumes of the Federal Register can exceed 60,000 pages

• Contents are required to be judicially noticed by 44 USCA 1507

Federal Register

In Each Issue of the Federal Register

• Table of Contents

• CFR Parts Affected section

• Presidential Proclamations, Executive Orders, Reorganization Plans, and Administrative Orders

• Agency Final Rules, Proposed Rules and Notices.

• Sunshine Act Meeting notices

• Unified Agenda of Federal Regulations

• Reader Aids

Federal Register

Order of Material in Each Issue of the Federal Register

• Presidential documents (Executive Orders, proclamations, and other documents)

• Rules and regulations (having legal effect)

• Proposed rules and regulations (text as well as regulatory agendas and notices of hearings)

• Notices (announcements of application deadlines or license revocations)

• Notices of Sunshine Act meetings

Federal Register

Presidential Documents Published in the Federal Register

• Executive Orders must be published in the Federal Register

– Direct agencies to manage operations

– Numbered consecutively

– Reprinted annually in 3 CFR but not codified

• Proclamations must be published in the Federal Register

– Ceremonial proclamations that recognize special occasions

– Substantive proclamations that relate to international trade, export controls, tariffs, or reservation of federal lands

– Reprinted annually in 3 CFR but not codified

• Administrative Orders and miscellaneous documents’ publication is optional

Federal Register

Table of Contents

• The Table of Contents is arranged by agency name.

• The Table of Contents lists regulations (rules), proposed regulations (rules), and notices.

Federal Register

Flightcrew compartment

Federal Aviation Administration

CFR Parts Affected in This Issue

• CFR Parts Affected in This Issue lists document in numerical order by CFR title and part

• Appears at the front of eachprint issue after the Tableof Contents

• Indicates whether documentsaffecting CFR parts areregulations or proposedregulations

• Cites the page numberswhere relevant documentsbegin

Federal Register

p.2112

The Final Rule (regulation) as published in the Federal Register on January 15, 2002, and amending, among other regulations, 14 CRR 121.313

USCA Authority

Action & Summary

121.313(f)

p. 2112

14 CFR Part 121

Reader Aids

• Reader Aids section is located at the back of each daily Federal Register print issue.

• Contains information on recentregulatory activity and new laws

• Includes

– CFR parts affected during thecurrent month

– Reminders of regulations going intoeffect on the current day andcomments due next week

– List of recently enacted public laws

– CFR customer service numbers andaddresses

Federal Register

14 CFR 121

Reader Aids

Finding Documents in Past Federal Register Issues; Indexes

• Federal Register Index

– issued quarterly

– annual cumulative issue

• Central Index System (CIS) Federal Register Index

• Use the Federal Register indexes to find regulations that were issued after the date of the most recent volume of the Code of Federal Regulations for that agency

• Daily Federal Register Index to CFR Parts Affected during the current month

Federal Register

Print Index

• This is the cumulative annualFederal Register Index for 2001

• There were 67,702 pagespublished in daily Federal Registerissues in 2001.

• There are many Federal AviationAgency actions listed in thisindex, but the final regulationpublished on January 15, 2002,concerning flightcrew compartmentdoors will be in the 2002 issuesof the index.

Pages

Federal Register

Federal Aviation Administration

Finding Documents in Past Federal Register Issues LSA

LSA (List of CFR Sections Affected)

– Printed each month

– Keyed to CFR parts and sections

– Online at www.access.gpo.gov/nara/lsa/aboutlsa.html

Title 14

121.313

Federal Register

http://www.access.gpo.gov/nara/lsa/aboutlsa.html

Final Rule as published in the Federal Register on January 15, 2002, and amending, among other regulations, 14 CFR 121.313.

USCA Authority

Action and Summary

121.313(f)

Federal Register

Finding Documents in the Federal Register Database (FR) on Westlaw

• Use a Find request when you know issue and page number of a Federal Register document

• Westlaw searches in the FR database

– Natural Language searching works well.

– Use Terms and Connectors field searches when you need to retrieve a specific document(s) or have specific criteria as to agency and nature of document.

• Federal Register issues go online the same day that they appear in print.

• Westlaw coverage in FR begins with July, 1980.

Federal Register

Other Tips for Searching the Federal Register (FR) Database on Westlaw

Useful Fields

• The prelim field (PR) contains the type of document, the issuing agency and any sub-agency, docket numbers, affected portions of the CFR, and other preliminary materials

• The caption field (CA) contains the subject matter of the document

• The summary field (SU) contains a summary of the document, if available

• The image field (IM) is a browsable field that shows which images are available for offline printing

Federal Register

Code of Federal Regulations (CFR)

Code of Federal Regulations

• The regulations first published in the Federal Register on a daily basis are then codified in the Code of Federal Regulations.

• The regulations that are published chronologically in the Federal Register are codified and arranged by title, then by chapter (one agency’s regulations) and finally by subject in the CFR.

• The CFR is divided into 50 titles, just like the USCA

– Some titles covering the same subjects are numbered the same in the CFR and in the USCA; others are not.

• Each title is divided into chapters, subchapters, parts, and sections.

• A regulation is cited by title, part, and section, e.g.,14 CFR 121.313 (Title 14, Part 121, Section 313).

CFR

• The soft-cover volumes of the CFR are issued each year in sets on a staggered, quarterly basis:

– Titles 1– 6 are current through January 1

– Titles 17 – 27 are current through April 1

– Titles 29 – 41 are current through July 1

– Titles 42 – 50 are current through October 1

• Each new set contains the text of all regulations in force as of the current through date. New regulations are merged with, and revoked regulations are deleted from, the previous set of regulations.

• The color of each set of volumes is changed every year; a current full set may contain different colored volumes, depending on the time of the year.

• Title 3, which contains Presidential Proclamations and Executive Orders, is always white.

CFR

Research Tools in Each Volume of the CFR

• Table of Contents listing all material within the book: titles, subtitles, chapters, subchapter(s), parts, and sections

– Subtitles are referenced to page numbers

• Material Approved for Incorporation by Reference ,which is regulatory material not published in the Federal Register or CFR

– Has force of law as if it were published in the Federal Register and CFR

– Mostly technical standards, state law, and regulations

• Table of CFR Titles and Chapters

• Redesignation Tables to help trace new location of parts and sections of a regulation

• List of CFR Sections Affected in the volume

CFR

Table of Contents• At the beginning of each print issue

• Documents are listed by agencies in alphabetical order

– Cross-referenced from Cabinet departments to subordinate agencies

– Each agency document is arranged by category• Rules• Proposed Rules• Notices

• Presidential documents are arranged as follows:

– Executive Orders

– Proclamations

– Determinations/Memoranda

CFR

• CFR titles are broken down by Chapter, Subchapter, and Part.

• Immediately preceding each part is a Table of Contents for the individual regulations contained within that part.

CFR

121.313

Table of Contents

Title 14Chapter 1Parts 60-139 Subchapter D

Part 121

• Regulation 121.313

• Paragraph (f) discusses requirements for the door to the flight-crew compartment.

Paragraph f

CFR

Title 14Parts 60-139

121.313

Material Approved for Incorporation by Reference is regulatory material not published in the Federal Register or CFR

– Has force of law as if were published in the Federal Register and CFR

– Mostly technical standards, state law, and regulations

CFR

Material Approvedfor Incorporation by Reference


• Table of CFR Titles and Chapters

• Redesignation Tables to help trace new location of parts and sections of a regulation

CFR

Table of CFR Titles and Chapters

Redesignation Table


List of CFR Sections Affected in each volume indicates the type of change that was made.

CFR

List of CFR Sections Affected


Access to the CFR: Index and Finding Aids

• CFR Index and Finding Aids is single volume

– Revised annually

– Index with subject entries and agency names in one listing

• Since 1980, a thesaurus has assured that all agencies use the same terminology for subject headings

– Parallel Table of Authorities and Rules

– List of Agency-Prepared Indexes Appearing in Individual CFR Volumes

CFR Index

• Subject entries and agency names are in one listing

• Access by subject or agency

• References CFR title and part numbers, not individual regulations

CFR Index

Index and FindingAids Volume

Index

14 CFR 121

• The List of Agency-Prepared Indexes provides information on how to locate agency indexes in various CFR volumes.

• The Parallel Table of Authorities shows where regulations promulgated under statute or Executive Order have been placed in the CFR.

CFR Index


List of Agency-PreparedIndexes Appearing inIndividual CFR Volumes

USCA Authorities

The list of CFR Titles, Chapters, Subchapters, and Parts provides an outline of the CFR organization.

CFR Index

List of CFR Titles, Chapters, Subchapters, and Parts

14 CFR 121


CFR Index

The Alphabetical List of Agencies Appearing in the CFR is another means of accessing the regulations.

Alphabetical List of AgenciesAppearing in the CFR


Updating Regulations in Print• LSA: List of CFR Sections Affected

– Issued monthly

– Indicates final and proposedchanges made since the lastpublication of the CFR set

• CFR Parts Affected

– In each volume of the Code of Federal Regulations

– Incorporated in the cumulativelist in the Reader Aids section

• CFR Parts Affected in this Issue

– In each daily issue of the FederalRegister

CFR

The Code of Federal Regulations Database (CFR) on Westlaw

• The CFR database includes all 50 titles.

• The database incorporates all but the most recent changes to the Code of Federal Regulations.

• There is an approximately two-week lag between publication of the Final Rule in the Federal Register and incorporation into the CFR database.

• Historical CFR databases date back to 1984.

CFR

The CFR on Westlaw

Useful fields

• The prelim field (PR) contains the CFR title and other headings that precede the caption

• The caption field (CA) contains the CFR section number and heading

• The notes field (NO) contains editorial and effective date notes

• The credit field (CR) contains USCA authority and Federal Register source notes

CFR

Federal Administrative (Agency) Decisions

Decisions of Administrative Bodies

Decisions of agencies can broadly be classified as:

Advisory opinions

– not binding

– authoritative interpretations of statutes and regulations that indicate agency policy and expectations

• Informal Adjudications

– governed by special statutory requirements or agency’s own regulations

– due process concerns apply

– discretionary

– generally not reviewable by a court

– conducted by presiding officers and not by independent Administrative Law Judges (ALJ)

Administrative Decisions

Formal Agency Decisions• Formal Adjudications: Quasi-judicial decisions

•• reported much as case law is

• usually delivered in written format

• the role of the court is often performed by an independent Administrative Law Judge (ALJ) or agency commissioner(s).

• proceedings are usually fact-finding inquiries into how regulations apply to a particular situation

• agencies are not strictly bound by prior decisions but the decisions have precedential value so attorneys who practice before an agency can use the decisions as an important primary source of the law.

• adjudicate disputes arising out of the interpretation or violation of enabling statutes or regulations

Formal DecisionsPublication of Decisions

• Official versions are available in most law and university libraries that are official depositories of the U.S. Government Printing Office

• Usually issued first as a slip opinion or advance sheet

• Many agencies eventually bind their decisions in permanently numbered volumes

• Some agencies publish only in pamphlet format, or only on microfiche

• In any format, most decisions have some sort of finding aids, such as an index, table of cases, or tables of statutes or regulations cited


Formal DecisionsPublication of decisions

• Unofficial versions are reproduced in looseleaf services, sometimes with sequentially numbered bound volumes.

• Unofficial versions tend to be far more current and better indexed than the official decisions.

• Unofficial versions are also placed on Westlaw. Westlaw contains the decisions of many federal and state agencies, including;

– Federal Communications Commission, Federal Labor and Employment Commission, Equal Employment Opportunity Commission, Internal Revenue Service, Interstate Commerce Commission, National Mediation Board, Federal Trade Commission, Federal Maritime Commission, Department of the Interior, Attorney General, and Department of Agriculture.


Unofficial decisions of the Federal Energy Regulatory Commission as published by CCH


Finding an Agency Decision

• Each agency has its own method of indexing decisions so few generalizations can be made.

– Official versions are usually more poorly indexed and slower to be indexed than unofficial versions

– Individual volumes may have finding aids, such as a table of contents, a table of cases reported, a list of opinions/decisions/orders, an index by type of action, a topical index, or an index-digest.

– Some sets of decisions may have finding aids, such as an index or digest for the set.

• Secondary sources, such as the American Law Reports or law review articles, often discuss agency decisions in the context of discussing a court case or a statute.


Finding an Agency Decision on Westlaw

• Westlaw is probably the fastest way for an attorney who does not regularly practice before a particular agency to find a decision or decisions that discuss a particular topic.


• KeyCite lists federal administrative decisions that have been cited in court cases

• Click the Citing References link.

• Click the Limit KeyCite Display button at bottom of screen.

• Deselect all but Administrative Decisions check box.

• Click Apply.

KeyCite for Regulations

Updating an Agency Decision

Precedent might not have as strong a role in updating an administrative decision as it would in case law but you still need to know

– Whether judicial review has overturned an agency decision

– Whether later agency decisions have disapproved of the decision

– The agency’s position on a particular issue


A Partial List of Agencies Whose Decisions Can be Updated in KeyCite

• Board of Immigration Appeals

• Equal Employment Opportunity Commission

• Environmental Protection Agency

• Federal Commerce Commission

• Federal Communications Commission

• Federal Energy Regulatory Commission

• Federal Government Contracts Board

• Federal Securities and Exchange Commission

• Internal Revenue Service (rulings and memoranda)

• National Labor Relations Board

• Office of Comptroller General

• Patent Office

• Public Utility Reports

• Tax Court


Updating Using Westlaw as a Citator

• Access a database containing case law, administrative law, analytical materials, or any other type of material that might contain a discussion of the administrative decision.

• Devise a Terms and Connectors search that will include some of the essential items in the citation of the decision within a few words or the same sentence of the party or agency name.

– Database: FENV-EPA

– Query: “asbestos removal” /s e.a.d.


Judicial Review of Agency Decisions• Once an Administrative Law Judge has issued a decision, that

decision can usually be appealed to a higher entity within the agency.

• Those appealing an agency decision must usually exhaust agency remedies before moving the action to a federal court.

• The final agency decision can usually be appealed

– to a federal court of appeals if Congress has provided an appeals process

– to the federal district court if no provision for appeal has been specified

Judicial Review of Agency Decisions• The appeal of these decisions can be found in the Supreme

Court Reporter®, the Federal Reporter®, and the Federal Supplement® in print and in the corresponding databases on Westlaw:

– Supreme Court cases are in the SCT database

– Federal Reporter cases are in the CTA database

– Federal Supplement cases are in the DCT database

• Summaries of these cases can be found in West’s Federal Practice Digests®, and the United States Supreme Court Digest®

– SCT-HN, CTA-HN, and DCT-HN are the corresponding databases on Westlaw.


Judicial Review of Administrative Decisions: Common Issues

• Constitutionality

• Agency acted outside the scope of delegated authority

• Procedural due process violations

• Arbitrary and capricious decision

• Abuse of agency discretion

• Separation of powers

• When original jurisdiction can be granted to the United States District Court

• Interpretation of the language of the enabling statute or regulation


When Federal District Court has Original Jurisdiction over Agency Matter

• When an agency is the plaintiff (See 28 USCA 1345)

• When there is a federal question (See 28 USCA 1331)

• When there is a mandamus action to compel an agency to perform a duty owed to plaintiff

• When there is a specific statute authorizing original jurisdiction in the federal district court

• Some examples of matters of original jurisdiction for the district court

– What constitutes an interpretive rule

– Agency compliance with Sunshine Act

– Exhaustion of remedies under Privacy Act

– What constitutes agency “action”, “order,” decision,” final order,” or “final decision” within meaning of statute authorizing judicial review

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