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Finding the Law: Administrative Law & Secondary Sources in PRINT

Finding the Law: Administrative Law & Secondary Sources in PRINT. Ann Hemmens University of Washington Law Library Introduction to Environmental Law & Process (SMA 476) October 6, 2005. Highly Regulated Society. Banking (FDIC, OCC) Environment (EPA) Health (HCFA, FDA)

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Finding the Law: Administrative Law & Secondary Sources in PRINT

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  1. Finding the Law:Administrative Law & Secondary Sources in PRINT Ann Hemmens University of Washington Law Library Introduction to Environmental Law & Process (SMA 476) October 6, 2005

  2. Highly Regulated Society • Banking (FDIC, OCC) • Environment (EPA) • Health (HCFA, FDA) • Labor Law (NLRB, OSHA) • Tax (IRS) • Securities (SEC) • Utilities (FCC, FERC)

  3. U.S. Legal System • Federalism • two levels of government (federal and state) • Separation of powers • ensure that none of 3 branches of government usurps powers of other branches

  4. Primary & Secondary Authority • Primary • Statement of "the law" from bodies with law-making authority • Secondary • Explain, interpret, and help you locate the primary law • Includes: Treatises, Hornbooks, law review articles, legal encyclopedias, Restatements, Nutshells etc.

  5. Organization of Federal & State Governments

  6. How do Sources of Law Interact? • Court interprets a statute • An earlier court decision is overruled by same court • Statute held unconstitutional by a court • Legislature writes statute in response to a case • Agency proposed rules in response to statute.

  7. Legal Citations • Federal Statute • Endangered Species Act • Pub.L.No. 93-205 • 87 Stat. 884 link • 16 U.S.C. § 1531 et seq. (2000) • 16 U.S.C. § 1538 Prohibited Acts link • Federal Regulations • Importation, Transportation and Exportation of Wildlife, 50 C.F.R. Part 14 (2004) link • 50 C.F.R. § 14.17 (2004): “Personally Owned Pet Birds” link • Agency? US Fish & Wildlife Service within the Dept. of the Interior.

  8. More Legal Citations • Federal Cases • Tennessee Valley Authority v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). link • Only need U.S. cite (ignore parallel cites) • San Carlos Apache Tribe v. U.S., 272 F.Supp.2d 860 (D.Ariz. 2003).

  9. Legal Research Questions • What type of law might govern this issue? • statutes? regulations? cases? • Which jurisdiction? • federal or state or both? • Did you update your research?

  10. Administrative Law • What is it? Rules, regulations, and decisions created by administrative agencies (federal & state). • Which agency covers a specific subject area? • U.S. Government Manual (http://www.gpoaccess.gov/gmanual/index.html) . Who is the Secretary of the Department of the Interior? • Procedural Standards? Administrative Procedure Act (APA) (5 USC §551 et seq.). • Notice of proposed rule • Comment period • Final rule & response to comments

  11. Authorization by Statute The Secretary shall by regulation . . . Determine whether any species is an endangered species or a threatened species because of . . . • the present or threatened destruction, modification, or curtailment of its habitat or range; • overutilization for commercial, recreational, scientific, or educational purposes; • disease or predation . . . . …… (b)(3)(c)(iii) The Secretary shall implement a system to monitor effectively the status of all species with respect to which a finding is made under … 16 USC § 1533

  12. Background – Congressional Findings 16 U.S.C. § 1531: Congressional findings and declarations of purposes and policy The Congress finds and declares that – (a)(1) Various species of fish, wildlife, and plants in the U.S. have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation… … (b) The purposes of this chapter are to provide a means whereby the ecosystems upon which endangered species … may be conserved …

  13. Code of Federal Regulations (CFR) • Rules & regulations in force • Published annually • Index & finding tables

  14. Federal Register (FR) • Daily • Proposed regs • New regs • Presidential documents • Executive orders • Proclamations

  15. Crystal Ball Semiannual Regulatory Agenda • Federal Register • Apr & Oct

  16. Code of Federal Regulations Index (CFR & USCS) Parallel Table of Authorities and Rules(in CFR Index volume)(statute → regulation table) Federal Register Index Annotated Codes United States Code Annotated (USCA) United States Code Service (USCS) How to Find Regulations?

  17. How to Find Regulations? Secondary Sources • Treatises & Hornbooks • Legal Encyclopedias (AmJur & CJS) • Law Reviews • Annotations (ALR Fed) • Government Documents • Books (search law library catalog)

  18. One-Stop Shopping • Collect primary sources • Analyze • Index

  19. Updating Regulations CFR Date on cover List of Sections Affected (LSA) Most recent monthly issue Federal Register Last day of prior month Federal Register Each daily issue from end of last month to today

  20. Administrative Decisions • Where are they published? • Cohen, Berring & Olson, How to Find the Law, Appendix D • websites

  21. Sample Search for Reg & Update Looking for Regulations implementing the Endangered Species Act. Specifically – lists identifying the species of wildlife and plants that the Director (US Fish & Wildlife Service within the Dept. of Interior) has determined are endangered or threatened under section 4(a) of the Act and definitions.

  22. CFR Index • Endangered and Threatened Species • Fish, Wildlife and Plants • Lists, 50 CFR 17

  23. 50 CFR 17 • Part 17 Table of Contents and 50 CFR §17.1 • 50 CFR § 17.3 Definitions • “Authentic native articles of handicragts and clothing” • 50 CFR § 17.40 Special Rules – mammals.

  24. Any changes to 50 CFR Part § 17.3? Updating Regulations • CFR volume (date on cover of volume containing Title 50 of CFR = Oct. 1, 2004)[update from oct.1, 2004 to today!] • List of Sections Affected (LSA)(most recent monthly issue = July 2005)[includes changes from Oct. 1, 2004 to July 29, 2005!] • Title 50

  25. Updating Regulations cont’d • Federal Register (last day of prior month = Aug. 31, 2005) – “CFR Parts Affected During August” Table at end of volume. • Proposed Rule affecting 50 CFR 17: found on page 46387 of Federal Register in August 2005. • Federal Register (most recent date of current month) – “CFR Parts Affected During September” Table at end. [Library only has up to Sept. 13th in print!]

  26. Final Rule Example ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 Cyfluthrin; Pesticide Tolerance ACTION: Final rule 70 FR 53944 (Sept. 13, 2005)

  27. Secondary Sources • Marine Mammal Protection Act • US Code cite? • Use Popular Names Table • Regulations related to it? • USCS or USCA • Encyclopedia entries explaining it? • AmJur or CJS

  28. Secondary Sources – cont’d • ALR “article” about it? • Use reference from USCS or ALR Index • Law review article on it? • Use reference from USCS or online Index (called LegalTrac) • Treatise or Hornbook or Nutshell or book from the Law Library

  29. Thanks for Listening • Gallagher Law Library Website & Catalog • Visit the Library (virtually or in person) • Tour the Library

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