Transcript Legal Research and Writing II  What is administrative law?  What are administrative rules/regulations?  What are administrative decisions?

Legal Research and Writing II
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What is administrative law?
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What are administrative rules/regulations?
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What are administrative decisions?
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Federal administrative agencies are either
part of the executive branch or independent.
Examples:
◦ DEA (Dept. of Justice)
◦ OSHA (Dept. of Labor)
◦ IRS (Dept. of the Treasury
Independent:
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EPA
FTC
SEC
SSA
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Congress delegates rule-making authority in
statutes:
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For example: 5 U.S.C. § 6102: Telemarketing rules
(a) In general
(1) The [Federal Trade] Commission shall prescribe rules
prohibiting deceptive telemarketing acts or practices
and other abusive telemarketing acts or practices.
(2) The Commission shall include in such rules respecting
deceptive telemarketing acts or practices a definition
. . . which may include acts or practices of entities or
individuals that assist or facilitate deceptive
telemarketing, including credit card laundering.
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Federal executive-branch agencies must get specific authority to
create regulations from Congress.
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Thus, the difference between regulations and statutes is their
source and weight (i.e., agencies v. Congress).
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If regulations exceed statutory authority, they are invalid.
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Read both the regulation and the authorizing statute.
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Quasi-legislative: rule-making activity (rules
and regulations).
-and
Quasi-judicial: decision-making activity
(agency decisions).
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Agencies may promulgate binding rules
Regulations may define or refine existing
statutory terms (e.g., defining a “disability”).
Regulations may implement a statute by
requiring specific actions (e.g., disclosing
information, filing reports).
Agencies may have quasi-judicial functions to
enforce rules.
Typically, there will be a hearing to determine a violation or
the penalty.
Typically, there will be a written decision from the agency
Administrative agency decisions are not all collected
in one source.
You may find references to administrative
regulations in an annotated statute.
You may find relevant regulations on an agency
website organized by subject.
You may find regulations through a word or
subject search on free or paid databases.
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Regulations are published
in two official sources:
◦ 1. The Federal Register
• Published daily
• Ordered chronologically
• Includes proposed and final regulations
◦ 2. Code of Federal Regulations (CFR)
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Ordered by subject, not date
50 titles representing broad
subject areas
Updated each year in paper,
but not all titles at the
same time
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Agencies start the rule-making process by
publishing “draft” or “proposed” regulations in the
Federal Register.
For example:
http://www.gpo.gov/fdsys/pkg/FR-2012-0927/pdf/2012-23792.pdf
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After the proposed rule is published, the agency
reviews comments from interested parties. There
may be a revision.
The comment and review cycle can continue several
times before the final regulation is published in the
Federal Register.
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No regulation is effective before
its final form is published in
the Federal Register.
For example:
http://www.gpo.gov/fdsys/pkg/FR-2012-0927/pdf/2012-23775.pdf
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Generally, agency websites are a good place
to begin, especially for background
information.
◦ If you know the agency that regulates the area,
often you can guess the website name. Or try a
government search engine for agency website URLs.
 http://www.usa.gov/
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Agency websites are not always current and
may not have full coverage, so check other
sources, and update.
Be sure to check that the regulations you find
are published and final (in the C.F.R. or
Federal Register).
The free online versions of the Code of Federal
Regulations on government websites are:
http://www.gpo.gov/fdsys/browse/collectionCfr.actio
n?collectionCode=CFR – “FDSYS” - This is the official
(.pdf) version of the C.F.R. but may need updating.
http://ecfr.gov – The “e-CFR” is updated daily. It is
usually better to start your research here. You still
have to update, but for a shorter time period.
1.
The official online version of the Code of Federal
Regulations is:
http://www.gpo.gov/fdsys/browse/collectionCfr.action?collectionCode=CFR
- This mirrors the paper version. Browse titles, or search by subject from.
Caution: Like the paper version, it is updated yearly, but not all at once.
Titles
Titles
Titles
Titles
1-16 are updated on Jan. 1
17-27 on Apr. 1
28-41 on July 1
42-50 on Oct. 1
Your regulation may have changed, so you must update this version!
The FDsys site has a “Retrieve by Citation” link beside
the Search box on the home page:
http://www.gpo.gov/fdsys/search/home.action
Select the Code of Federal Regulations
collection, and enter your cite.
An unofficial, but more up-to-date, online version of the
Code of Federal Regulations is:
http://ecfr.gpoaccess.gov
(The name is about to change):
http://ecfr.gov
The e-CFR is updated daily. It is usually better to start your
research here, but you must still update to the present date.
Your client is a farmer who uses a particular herbicide
(glufosinate ammonium) to control weeds in the sweetcorn crops he sells for forage. The herbicide is a
regulated, substance, and he wants to know what levels
of residue are allowed on the crops he sells.
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A colleague has given you a citation for a regulation
that may be helpful: 40 C.F.R. § 180.473. Find the
cite in both versions, and note how current the
information is:
http://www.gpo.gov/fdsys/
http://ecfr.gov
Example:
40 C.F.R. § 180.473
1. After the official C.F.R., update with the most
current month of the L.S.A. –List of Sections
Affected (a “collection” on the FDsys website).
2. Then update since then by checking the Federal
Register’s cumulative monthly table called “CFR
Parts Affected” in the “Reader’s Aids” section at the
end of each issue.
http://www.gpo.gov/fdsys/
Example:
40 C.F.R. § 180.473
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After using the eCFR, find the most recent daily issue of
the Federal Register online.
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Check the cumulative “Reader’s Aids” section at the end.
There will be a list of “CFR Parts Affected.”
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Look up your regulation by cite to find any changes.
The text of any updates will be in the pages of the
Federal Register.
http://ecfr.gpoaccess.gov
To start a search when you don’t know the
agency that will deal with the regulation:
Go to www.usa.gov – type in key words to find
the agency you are looking for.
Example:
◦ You represent a cheese maker and are searching for
any regulations on when a food can be labeled as
“light” or “lite.”
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Go to www.fda.gov, and click Code of Federal
Regulations under “Regulatory Information.”
Then find “Federal Food and Drug
Regulations.”
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Many federal agencies issue written decisions
as part of their “judicial” function.
You can find these on agency websites or
commercial databases (Lexis and Westlaw),
and in loose-leaf sources.
You can also try the University of Virginia’s
agency-decision subject collection:
http://www2.lib.virginia.edu/govtinfo/fed_decision
s_subject.html#Drugs
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You can find court decisions interpreting
administrative rules through regular subject
and citation searches.
Paid research services also typically retrieve
related regulations in their search results.
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Use key words in the top search screen.
Click “View Tree” on the top blue bar for a
shortcut letter index.
Or scroll through subject headings—this is
slow without the left-hand tree.
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Once you find a relevant administrative rule,
you can use that as a starting point for
further research.
You can use the citation as a search term, or
you may discover special terms of art
that you can include in your search for related
information.