Researching Administrative Law

1. Researching Administrative Law Legal Research and Writing II

2. Some Basic Concepts • What is administrative law? • What are administrative rules/regulations? • What are administrative decisions?

3. Administrative Law • 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: • EPA • FTC • SEC • SSA

4. Delegated Authority • Congress delegates rule-making authority in statutes: • For example: 5 U.S.C. § 6102: Telemarketing rules • In general • The [Federal Trade] Commission shall prescribe rules prohibiting deceptive telemarketing acts or practices and other abusive telemarketing acts or practices. • 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.

5. Scope of Authority • Federal executive-branch agencies must get specific authority to create regulations from Congress. • Thus, the difference between regulations and statutes is their source and weight (i.e., agencies v. Congress). • If regulations exceed statutory authority, they are invalid. • Read both the regulation and the authorizing statute.

6. Types of Lawmaking Activity by Agencies • Quasi-legislative: rule-making activity (rules and regulations). -and- • Quasi-judicial: decision-making activity (agency decisions).

7. Quasi-Legislative • 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).

8. Quasi-Judicial 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.

9. Some Starting Points for Research 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.

10. Finding the Text of Regulations – The Federal Register • Regulations are publishedin two official sources: • 1. The Federal Register • Published daily • Ordered chronologically • Includes proposed and final regulations

11. Finding the Text of Regulations – The Code of Federal Regulations • 2. Code of Federal Regulations (CFR) • Ordered by subject, not date • 50 titles representing broad subject areas • Updated each year in paper,but not all titles at the same time

12. Rule-making process • 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-2012-09-27/pdf/2012-23792.pdf

13. Rule-Making Process(Continued) • 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.

14. Rule-Making Process(Continued) • No regulation is effective before its final form is published in the Federal Register. For example: http://www.gpo.gov/fdsys/pkg/FR-2012-09-27/pdf/2012-23775.pdf

15. Researching Administrative Rules and Decisions • 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/

16. Caution! • 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).

17. When you know the cite to the regulation (options): The free online versions of the Code of Federal Regulations on government websites are: http://www.gpo.gov/fdsys/browse/collectionCfr.action?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.

18. The Official Online CFR 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 1-16 are updated on Jan. 1 Titles 17-27 on Apr. 1 Titles 28-41 on July 1 Titles 42-50 on Oct. 1 Your regulation may have changed, so you must update this version!

19. The Official Online CFR 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.

20. The Unofficial Online CRF 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.

21. Example: Your client is a farmer who uses a particular herbicide (glufosinate ammonium) to control weeds in the sweet-corn 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. • 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

22. How to Update a Regulation (from the Official Version): 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/

23. How to Update a Regulation (from the eCFR instead): Example: 40 C.F.R. § 180.473 • After using the eCFR, find the most recent daily issue of the Federal Register online. • Check the cumulative “Reader’s Aids” section at the end. There will be a list of “CFR Parts Affected.” • 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

24. If You Don’t Know the Cite or the Agency 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.”

25. www.Usa.gov

26. Your Results

27. Go to the Agency Website • Go to www.fda.gov, and click Code of Federal Regulations under “Regulatory Information.” • Then find “Federal Food and Drug Regulations.”

28. Search in the CFR Database on www.FDA.gov

29. Your Results – Regulations on Food Labeling

30. View your results

31. Finding Agency Decisions • 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_decisions_subject.html#Drugs

32. Finding Court Decisions • 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.

33. State Administrative Law Research

34. State Administrative Law Research

35. Wisconsin Administrative Code – Subject Index

36. Wisconsin Administrative Code – Subject Searching • 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.

37. Wisconsin Administrative Code – Subject Searching

38. Wisconsin Administrative Code – Find Relevant Sections

39. Table of contents search

40. Table of Contents Search

41. Browse Relevant Sections

42. Agency Regulations – Browse Relevant Sections

43. Expanding Your Research • 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.