Researching Administrative Law Legal Research and Writing II

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

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

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.

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.

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

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).

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.

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.

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

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

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 The link is to a .pdf of a proposed regulation.

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.

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 Example of a final regulation – see note in the rule caption to recognize it as a final rule.

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/ You can guess some names: www.epa.gov. ; www.fda.gov. There is usually a “regulations” or “rules” link on agency websites. That typically takes you to FDsys, which we’ll cover in the next few slides.

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). Fdsys has a Search engine (mixed reliability) and has a “Retrieve By Citation” link to the right of the Search box.

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.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. Researchers have two options: the official (more cumbersome) version and the e-CFR, which is much more current and which most everyone uses.

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! The GPO Access (CFR Annual) Version is a .pdf of the paper version (hard to update), but if there’s ever a question about wording, it controls.

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.

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. The e-CFR is only about three or four days behind the current date. It will show how current it is at the top of the screen.

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 On the first GPOAccess website, click “Retrieve by Citation” to the right of the search box, then choose Code of Fed. Regs. Choose “2012” or “Most Recent Edition,” then title 40, part 180, and subsection 473. Click Retrieve Document. It will show the regulation as of July 1, 2012. You would have to update from July 1, 2012, to today’s date to find any changes. On the second site—e-CFR—click on Simple Search in the left margin and enter the cite. This will bring up the section as of October 5, 2012 (today’s date is October 10, 2012). You would have to update only since October 5, 2012, to find any changes.

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/ 1. Because Title 40 of the official CFR is current as of July 1, 2012, update from there with the most current LSA – e.g., today it was the August 2012 edition (find the LSA link online via the link in the left column of the CFR page). At the end of each Federal Register issue is a section called “Reader Aids,” which has a “CFR Parts Affected” table. That table in the Federal Register is cumulative only for every month, so you have to check the last issue for each month since the LSA monthly issue online. To update since August 2012, check the Federal Register table for the last day in September and today’s date in October 2012. Yes, this is a cumbersome process in free online sources, but you just need to remember that it takes several steps to update the official version of a regulation.

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 The e-CFR is pretty current (within a few days), but you still have to check the Federal Register issues (usually one or two) since the eCFR’s posting date. Go to the most recent daily Federal Register (on the FDsys website), and look at the cumulative “Reader Aids” table in back. If you research very early in the month (e.g., Oct. 2, 2012), and the e-CFR is current until September 28, 2012, you have to check the last Federal Register Issue for September and the most current Federal Register for October. The CFR update table is cumulative only for each month.

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.” This site has general agency links and also subject/topic information.

www.Usa.gov For the light-cheese example, enter the sample search term “food labeling.”

Your Results This search will lead you to the FDA – the appropriate agency that handles food labeling.

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.” Get background information at the agency website. The agency may have its own search engine and links to regulations or link back to the general FDsys website.

Search in the CFR Database on www.FDA.gov On the FDA’s website under “Regulatory Information,” click on “Code of Federal Regulations.” This will allow you to search the CFR specifically under Title 21 (covering Food and Drugs). Note, this search engine says to include the connector “and” between multiple words.

Your Results – Regulations on Food Labeling If you browse down to section 101.56, you will see “Nutrient content claims for light or lite” under section 101 - “Food Labeling.”

View your results

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_decision s_subject.html#Drugs

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.

State Administrative Law Research For state administrative regulations, start at the Legislative Reference Bureau website (http://legis.wisconsin.gov/lrb/index.htm), and click on Legislative Documents, then Administrative Code.

State Administrative Law Research Wisconsin too has a daily compilation of rules, “Wisconsin Register” and a subject code “Wisconsin Administrative Code.” Under Administrative Code, click on Subject Index. (Browsing the Table of Contents of the Administrative Code is also possible.)

Wisconsin Administrative Code – Subject Index Use the Search box at the top, or scroll down to browse possible subject listings. Click “View Tree” (upper right banner) for a drop-down list of main headings and easy jumps. Be thorough in checking all possible search words (e.g., cheese, dairy, etc.).

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. Scroll down to browse possible subject listings. Find, for example, “Food safety – Cheese grading - (near the bottom).

Wisconsin Administrative Code – Subject Searching 1. On the left-hand “tree,” for example, click C for cheese; it sends you to Dairy Products. There is an early entry for Advertising and Labeling, chapter 83, which is off-point. Tell students to check all possible descriptive words. 2. If you continue to browse under Dairy Products, there is Cheese, Grading and Marking (chapter 81). Or, in the side index, F takes you to Food Safety. “Food safety – Cheese grading – Packaging and labeling” will also take you to ch. 81. Or search “Labeling” and find cheese labeling.

Wisconsin Administrative Code – Find Relevant Sections Under chapter 81’s index, you’ll get to a list of the many cheese-related regulations in Wisconsin.

Table of contents search Back at the Wisconsin Legislative Materials page (http://legis.wisconsin.gov/lrb/index.htm) of the LRB website, you could also click Table of Contents.

Table of Contents Search That will give a list of agencies. Browse the list, and choose your relevant agency (Agriculture, Trade, and Consumer Protection).

Browse Relevant Sections Browse the sub-index of related regulations in the subject code (ATCP) (Part 81 – Cheese grading, packaging, and labeling).

Agency Regulations – Browse Relevant Sections Under chapter 81’s index, you’ll again get to a list of the cheese-related regulations in Wisconsin.

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.