Presentation on theme: "Legal Research and Writing II. What is administrative law? What are administrative rules/regulations? What are administrative decisions?"— Presentation transcript:
Legal Research and Writing II
What is administrative law? What are administrative rules/regulations? What are administrative decisions?
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
Congress delegates rule-making authority in statutes: For example: 5 U.S.C. § 6102: Telemarketing rules (a)In general (1)The [Federal Trade] Commission shall prescribe rules prohibiting deceptive telemarketing acts or practices and other abusive telemarketing acts or practices. (2)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.
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.
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).
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.
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.
Regulations are published in two official sources: 1. The Federal Register Published daily Ordered chronologically Includes proposed and final 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
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
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.
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
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/
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).
The free online versions of the Code of Federal Regulations on government websites are: http://www.gpo.gov/fdsys/browse/collectionCfr.actio n?collectionCode=CFRhttp://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.govhttp://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. 1.
The official online version of the Code of Federal Regulations is: http://www.gpo.gov/fdsys/browse/collectionCfr.action?collectionCode=CFR 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 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.
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.
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: 1. http://www.gpo.gov/fdsys/ http://www.gpo.gov/fdsys/ 2. http://ecfr.gov http://ecfr.gov
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 Registers cumulative monthly table called CFR Parts Affected in the Readers Aids section at the end of each issue. http://www.gpo.gov/fdsys/
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 Readers 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
To start a search when you dont 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.www.usa.gov Example: You represent a cheese maker and are searching for any regulations on when a food can be labeled as light or lite.
Go to www.fda.gov, and click Code of Federal Regulations under Regulatory Information.www.fda.gov Then find Federal Food and Drug Regulations.
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 Virginias agency-decision subject collection: http://www2.lib.virginia.edu/govtinfo/fed_decision s_subject.html#Drugs http://www2.lib.virginia.edu/govtinfo/fed_decision s_subject.html#Drugs
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.
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 headingsthis is slow without the left-hand tree.
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.