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. Introduction: The Role of Agencies Federal RegisterCode of Federal Regulations (CFR)Federal Administrative (Agency) Decisions . CONTENTS. 2. Legislative JudicialExecutivePresidentCabinetAdministrative Agenciesare established by legislatures, agencies and are usually organized under the e
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1. West’s Instructional Aid Series ADMINISTRATIVE LAW RESEARCH
2. Introduction: The Role of Agencies
Federal Register
Code of Federal Regulations (CFR)
Federal Administrative (Agency) Decisions
2
3. 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.) 3
4. 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. 4
5. 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. 5
6. 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 6
7. 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 7
8. 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. ROLE OF ADMINISTRATIVE AGENCIES 8
9. 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. 9
10. 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 10
11. 11
12. 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 12
13. 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 13
14. 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) 14
15. 15
16. Introduction: The Role of Agencies
Federal Register
Code of Federal Regulations (CFR)
Federal Administrative (Agency) Decisions
16
17. 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. 17
18. 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. 18
19. 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 19
20. 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. 20
21. 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 21
22. 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 22
23. 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 23
24. 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 24
25. 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 25
26. 26
27. The Table of Contents is arranged by agency name.
The Table of Contents lists regulations (rules), proposed regulations (rules), and notices. 27
28. 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 28
29. The Final Rule (regulation) as published in the Federal Register on January 15, 2002, and amending, among other regulations, 14 CRR 121.313 29
30. 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 30
31. 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 31
32. 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. 32
33. 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 33
34. Final Rule as published in the Federal Register on January 15, 2002, and amending, among other regulations, 14 CFR 121.313. 34
35. 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. 35
36. 36
37. 37
38. 38
39. 39
40. The Unified Agenda compiles agendas prepared semi-annually by Cabinet departments, other executive agencies and independent agencies. Each agenda includes regulations to be reviewed in the upcoming year and regulatory activity completed in the past year.
To retrieve a Unified Agenda from a specific agency:
pr(“unified agenda” & “aviation administration”) 40
41. 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 41
42. 42
43. 43
44. Introduction: The Role of Agencies
Federal Register
Code of Federal Regulations (CFR)
Federal Administrative (Agency) Decisions
44
45. 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). 45
46. 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. 46
47. 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 47
48. 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 48
49. 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. 49
50. 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 50
51. Table of CFR Titles and Chapters
Redesignation Tables to help trace new location of parts and sections of a regulation 51
52. List of CFR Sections Affected in each volume indicates the type of change that was made. 52
53. 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 53
54. Subject entries and agency names are in one listing
Access by subject or agency
References CFR title and part numbers, not individual regulations 54
55. 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. 55
56. The list of CFR Titles, Chapters, Subchapters, and Parts provides an outline of the CFR organization. 56
57. The Alphabetical List of Agencies Appearing in the CFR is another means of accessing the regulations. 57
58. 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 Federal 58
59. 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.
Database identifiers are CFR01, CFR00, CFR99, etc. 59
60. If you know the citation of a CFR section
Access the Find service
Enter: 14 CFR 121.313 60
61. Natural Language:
Database: CFR
Search: security to strengthen flight-crew doors in airplanes 61
62. 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 62
63. Terms and Connector searches in CFR
To retrieve all documents within a specific title and part
pr(“title 14” & “part 121”)
To retrieve all documents discussing a particular topic within a particular title
pr(“title 14”) & flight-crew pilot /s door
pr(“aviation administration”) & flight-crew /s door
To retrieve all documents discussing a particular regulation
pr(“title 14”) & 121.313
pr(“title 14”) & 121.313(f) 63
64. When viewing a regulation, click the Table of Contents link on the Links for tab in the left frame.
The Table of Contents opens to the regulation you are viewing in the right frame.
You can expand or collapse any division in the Table of Contents. 64
65. Previous and Next Section links allow you to move from regulation to regulation as if paging through the print regulations. 65
66. KeyCite History for the CFR
Shows recent changes to a regulation
Shows history of the regulation
KeyCite Citing References lists the cases and secondary sources that have cited a CFR section. 66
67. Introduction: The Role of Agencies
Federal Register
Code of Federal Regulations (CFR)
Federal Administrative (Agency) Decisions
67
68. 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) 68
69. Formal Adjudications: Quasi-judicial decisions
adjudicate disputes arising out of the interpretation or violation of enabling statutes or regulations
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. 69
70. Publication 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 70
71. 71
72. Publication 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. 72
73. Unofficial decisions of the Federal Energy Regulatory Commission as published by CCH 73
74. 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. 74
75. 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.
Database: TP-ALL (Texts, Periodicals and Law Reviews)
Query: f.c.c. f.c.c.r. /10 decision /p merger re-organization /p radio television 75
76. KeyCite lists administrative decisions that cite to court cases
Click the Citing References link.
Click the Limit KeyCite Display button at bottom of screen.
Clear All, then select Administrative Decisions
Click Apply to see the 257 decisions that cite to this case. 76
77. When you know the document’s citation, access the Find service and type
16 F.C.C.R. 16087
32 FCC 2d 360
When you know the parties name and the database identifier
Database: FCOM-FCC
Search: ti(nynex & “new england”)
When you know the fact pattern, specific proper names, or unique terms
Database: FCOM-FCC
“captain kangaroo” /p child /s programming schedul!
When you want to retrieve documents that discuss an issue
Database: FCOM-FCC Search in Natural Language:
misleading (deceptive false) advertising vitamins 77
78. 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 78
79. 79
80. 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 80
81. 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. 81
82. 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 82
83. 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. 83
84. 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 84
85. 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 85
86. 86
87. If you are unfamiliar with administrative law research, call the West Reference Attorneys. They are:
available 24 hours a day, seven days a week
available to help you at no charge
licensed attorneys
fully experienced Westlaw users
a knowledgeable and friendly research resource
1-800-850-WEST
1-800-850-9378 87