Administrative Legal Research Rules, Regulations, and the “Bureaucracy”

1. Administrative Legal Research Rules, Regulations, and the “Bureaucracy” • Law as generated by the Executive Branch • Implemented by Agencies, Departments, Boards, Commissions • “Congress cannot possibly provide for the multitude of possible situations which might arise under its enactments. Much of the work of creating specific rules to govern conduct is left to agencies specializing in particular activities. The agencies interpret and apply their governing statutes to create highly detailed rules and regulations, which give specific content to the statutory intent and provide procedures for implementation and enforcement.”

2. Relationship to statutes • Statutes are generally superior in the legal hierarchy to Regulations. • Statutes dictate the scope of regulatory authority. • Legal challenges to regulations not uncommon. • Statutes must delegate regulatory authority to one or more agencies. • However, properly promulgated regulations have the same legal force and effect as statutes. • Publication of regulations is analogous to publication of statutes: • First published as an entire regulation – The Federal Register • Published in a codified version by subject, publishing only the regulations currently in force – The Code of Federal Regulations

3. A bit of history • Comparatively little regulation prior to the 1900’s. • No systematic publication of regulations. • Significant regulatory growth in the 1920’s and 30’s, yet still no systematic publication, “Governance in ignorance of law” • Supreme Court got involved • Enactment of the Federal Register Act of 1935 • Publish all presidential proclamations and orders • Publish, “Every document or order which prescribes a penalty or course of conduct, confers a right, privilege, authority or immunity or imposes an obligation applicable to the general public, members of a class or persons in a locality as distinguished from named individuals or organizations.” • Publication in the Federal Register is deemed legal notice.

4. The Basic Research Tools • The Federal Register – Official source for proposed and final rules, notices. www.fdsys.gov • Code of Federal Regulations – Codification of regulations currently in force, arranged by Title/Chapter/Part/Subpart • Titles = subject; • Chapters = agency; • Subchapter/Part = organizational divisions; • Subpart = individual regulations • eCFR – Unofficial Codification, kept up to date • Agency Websites

5. Administrative Legal Research – Agency Resources • Organizing the Bureaucracy • Executive Agencies/Departments • Primary units of the executive branch • Cabinet level, headed by a “Secretary of” • Often many bureaus/Divisions/Offices within • Independent Agencies • Outside of the executive departments • Headed by either a single person or a board • Fewer bureaus/divisions/offices within • Boards, Commissions, Committee • More limited in scope/mandate • Sources for lists of agencies • USA.gov • LSU Federal Agency Directory

6. Identifying the Agency that you need • Is it identified in the statute? • Code of Federal Regulations:Regs and Tables • Review a hierarchical list • Googling is OK! • Let’s look… • Your client bought a farm and needs to apply for Federal Crop Insurance. Which agency? • Which board of which agency is the final decision-maker in matters arising under federal worker protection laws? • The Hart-Scott-Rodino Act now requires premerger notification to two federal agencies in advance of certain mergers and acquisitions. Which agencies?

7. What kind of information do agencies produce? • Rules and Regulations • Found in FR and CFR • Background documentation • Administrative decision-making, “Quasi-judicial opinions” • Responding to specific dispute/challenge of agency decision • May be multiple level • Often required as pre-requisite to litigation • Interpretations and guidance documents • Policy statements • Technical reports and statistics • Procedures, guides, manuals, directories • Forms

8. Finding Agency information • Start with the Agency Website • Review how it is organized • Site map • Search box • Things to look for • “Laws”, “Rules and Regulations” “Laws and Regulations”, etc. • “Rulings”, “Actions”, “Decisions” • Publications: a wide variety • Forms • “Policies”, “Guidance” • FOIA

9. Examples • USCIS • EPA • MSPB • OSHA

10. Finding Agency Information • Pick up the phone!!! • Finding the right person • Contact information in proposed regulations • “Contact Us” on the Website • Press office, media relations, local office, General Counsel • Print Directories • Federal Yellow Book

11. Adjudications and the Administrative Procedures Act • Administrative Procedures Act, 5 USC 500 et.seq. • Provides for formal and informal adjudication of administrative decisions • 5 USC 554-559 formal adjudication – similar to civil trial before ALJ • 5 USC 571-584 alternative dispute resolution – arbitration/mediation • Also governs rulemaking process, record-keeping requirements, et.al. • Good print resources: • Koch, Administrative Law and Practice • Bender’s Administrative Law (Available on Lexis) • Pike & Fischer, Administrative Law (Reporter for court decisions dealing with administrative and APA issues) • Others in call number KF5400 et.seq.

12. State Administrative Law • Most states follow federal model • E.g. Publication of Rules in “Register” then a “Code” • May not publish proposed rules, only final; less background, “legislative history” information • Agency Websites continue to be best source • Often more consumer/business oriented • “Program” oriented • Less formal “quasi-judicial” adjudicatory structure

13. A Regulatory Journey • Wanted: A LEUP (Low Explosive User’s Permit) • Who issues them? • Regulations to be followed? • What form to you need? • Is a state form is also needed? • From what agency? • Which form. • Are there any relevant rulings? • Any other info from the ATF? • Local office? • Beginning to end: $200 up front, 4 inspections, 5.5 months