4Three Sources of the Law IntroductionThree Sources of the LawLegislativeJudicialExecutivePresidentCabinetAdministrative Agenciesare established by legislatures, agencies and are usually organized under the executive branch of government, often associated with a Cabinet positionconduct legislative, executive, and judicial types of activitiesexist on both federal and state levels (We will use the federal system as the paradigm for state agencies.)
5Examples of executive branch agencies: Environmental Protection Agency IntroductionExamples of executive branch agencies:Environmental Protection AgencyDepartment of TransportationFederal Reserve BoardDepartment of AgricultureUnited States Postal ServiceDepartment of Veterans’ AffairsFederal Aviation AdministrationBecause of the scope of Congressional delegation of authority, each agency is unique in its structure, its personnel, and the nature of its regulations.Unless talking about a specific agency, administrative agencies’ regulations and decisions must be discussed in broad generalizations.
6Independent Administrative Agencies: The Fourth Branch of Government? IntroductionIndependent Administrative Agencies: The Fourth Branch of Government?There are also agencies that are created by Congress as part of the executive branch but are not under the direct control of the president.Many of these are independent regulatory commissions.The president appoints, but cannot remove commissioners except for causes specified under the enabling statute.These agencies are often called the “headless fourth branch” of government.
7Examples of regulatory commissions are the Civil Aeronautics Board IntroductionExamples of regulatory commissions are theCivil Aeronautics BoardEqual Employment Opportunity CommissionFederal Trade CommissionNational Labor Relations BoardNuclear Regulatory CommissionSecurities and Exchange CommissionFederal Energy Regulatory CommissionFederal Deposit Insurance CorporationFederal Communications Commission
8An administrative agency may be called a IntroductionAn administrative agency may be called aBoardNational Labor Relations BoardCommissionFederal Communications CommissionCorporationFederal Deposit Insurance CorporationAuthorityTennessee Valley AuthorityDepartmentDepartment of TransportationAdministrationSocial Security AdministrationAgencyEnvironmental Protection Agency
9Role of Administrative Agencies IntroductionRole of Administrative AgenciesLegislative: Granted rulemaking authorityCongress delegates authority to promulgate regulations to administrative agenciesEnact enabling statutesEstablish the scope of agency authorityPresidential Executive Order may also delegate authority to promulgate regulations to administrative agencies.Judicial: Congress may also grant power to hear and settle disputes arising from the regulation or the enabling statute.Executive: Congress may also grant power to investigate and prosecute violators of regulations.
10Role of Administrative Agencies IntroductionRole of Administrative AgenciesThe Securities and Exchange Commission is an example of an agency with powers similar to those of all three branches of governmentLegislative: promulgates regulations governing what information must be given to investors.Judicial: conducts hearings to determine guilt and mete out punishment to violators of these regulations.Executive: enforces these regulations by prosecuting violators by disciplinary actions and stop orders.
11Role of Administrative Agencies IntroductionRole of Administrative AgenciesOutcomes of agency actions include:Rules or regulations (the two words are used interchangeably), which have the same effect as statutesLicenses, which include permits, certificates, other types of permissionAdvisory opinions, which are authoritative interpretations of statutes and regulation but are not bindingOrders, which are the final disposition of any agency action, other than rulemakingDecisions, which adjudicate controversies arising out of the interpretation of statutes or regulations; they are issued in the same manner as court decisions
12Comparison of the Roles of Statutes and Regulations IntroductionComparison of the Roles of Statutes and RegulationsSTATUTESPassed by CongressProvide for broad social and economic goals and legal requirementsGet their power from the ConstitutionReviewed by courts for constitutionalityRepresentative democracy- Congress acts to represent the will of the peopleREGULATIONSIssued by agenciesGet their power from CongressPrescribe specific legal requirements to meet congressional goalsReviewed by courts to determine constitutionality, limits of delegated authority, and whether they are arbitrary and capriciousParticipatory democracy – agencies must seek and consider public comment
13The Process of Promulgating Regulations (Rulemaking) IntroductionThe Process of Promulgating Regulations (Rulemaking)The initiative behind promulgation of a new regulation or a change in a regulation can originate from many sources, includinglegislation that delegates authoritycongressional hearings and reportscourt ordersExecutive Orders and Office of Management and Budget Circularsagency acting on its own initiativeemergency situations, technological developments, etc.political pressuresFederal Advisory Committee recommendationspetitions and informal requests from affected parties
14Rulemaking Process Regulation is proposed IntroductionRulemaking ProcessRegulation is proposedOffice of Management and Budget reviews under Executive Order 12866Proposed rule is published in the Federal RegisterPublic comment is invitedOffice of Management and Budget re-reviews regulationFinal regulation published in the Federal Register
15Rulemaking Process Final regulation published in the Federal Register IntroductionRulemaking ProcessFinal regulation published in the Federal RegisterResponds to commentAmends Code of Federal RegulationsSets effective date30-day minimum for most regulations60-day minimum for major regulationsNo minimum for good causeAgency may delay or withdraw regulation before it becomes effectiveAgency submits regulation to Congress and Government Accounting Office, which can nullify the regulationRegulation is placed in Code of Federal Regulations (CFR)
17BackgroundFederal legislation in the 1930s began addressing numerous economic and social problems.Federal agencies were created to formulate the regulations that were to implement congressional intent.The public needed notice of the regulations that would help govern their lives as these new regulations went into effect.Courts began to rule that these “secret laws” were a violation of right of due process under the Constitution.A centralized filing and publication system was needed.
18The Federal Register Act The Federal Register Act was enacted July 26, 1935.The Federal Register Act is codified in Title 44, Chapter 15, of the United States Code Annotated®(USCA®).It provides for a daily Federal Register to publish executive agency regulations and notices and presidential documents.The act was amended in 1937 to create Code of Federal Regulations, which arranges the regulations by government agency.
19Publication in the Federal Register Provides official notice of a regulation’s existence, contents, and legal effect (constructive notice)Establishes the Federal Register text as true copy of original signed documentSpecifies the legal authority of the agencyGives regulations evidentiary status so they are admissible in courtShows how and why the Code of Federal Regulations will be amended
20The Administrative Procedure Act Federal RegisterThe Administrative Procedure ActThe Administrative Procedure Act (APA) was enacted June 11, 1946.The APA is codified in Title 5 of the USCA, sections 551, et seq.The APA provides that due process and public participation requirements must be met in the promulgation of a new regulation as published in the Federal Register.
21The Administrative Procedure Act Federal RegisterThe Administrative Procedure ActDue process and public participation requirementsMust give notice of proposed ruleMust take public comments and respond in final ruleRegulations cannot be enforced if not published in the Federal RegisterRegulations cannot be effective until 30 days after publicationMust publish statements of the organization and procedure for whom to contact for comment in the agencyMust state the legal basis and purpose of the regulation
22Federal Register Published every week-day, except on federal holidays All daily issues from a year constitute a single volume with consecutive pagination throughout the yearA single issue contains about 300 pagesAnnual volumes of the Federal Register can exceed 60,000 pagesContents are required to be judicially noticed by 44 USCA 1507
23In Each Issue of the Federal Register Table of ContentsCFR Parts Affected sectionPresidential Proclamations, Executive Orders, Reorganization Plans, and Administrative OrdersAgency Final Rules, Proposed Rules and Notices.Sunshine Act Meeting noticesUnified Agenda of Federal RegulationsReader Aids
24Order of Material in Each Issue of the Federal Register Presidential documents (Executive Orders, proclamations, and other documents)Rules and regulations (having legal effect)Proposed rules and regulations (text as well as regulatory agendas and notices of hearings)Notices (announcements of application deadlines or license revocations)Notices of Sunshine Act meetings
25Presidential Documents Published in the Federal Register Executive Orders must be published in the Federal RegisterDirect agencies to manage operationsNumbered consecutivelyReprinted annually in 3 CFR but not codifiedProclamations must be published in the Federal RegisterCeremonial proclamations that recognize special occasionsSubstantive proclamations that relate to international trade, export controls, tariffs, or reservation of federal landsAdministrative Orders and miscellaneous documents’ publication is optional
26Table of Contents Federal Register Federal Aviation Administration Flightcrew compartmentThe Table of Contents is arranged by agency name.The Table of Contents lists regulations (rules), proposed regulations (rules), and notices.
27CFR Parts Affected in This Issue Federal RegisterCFR Parts Affected in This IssueCFR Parts Affected in This Issue lists document in numerical order by CFR title and partAppears at the front of each print issue after the Table of ContentsIndicates whether documents affecting CFR parts are regulations or proposed regulationsCites the page numbers where relevant documents beginp.2112
28p. 211214 CFR Part 121Action &Summary(f)USCA AuthorityThe Final Rule (regulation) as published in the Federal Register on January 15, 2002, and amending, among other regulations, 14 CRR
29Reader Aids Federal Register Reader Aids section is located at the back of each daily Federal Register print issue.Contains information on recent regulatory activity and new lawsIncludesCFR parts affected during the current monthReminders of regulations going into effect on the current day and comments due next weekList of recently enacted public lawsCFR customer service numbers and addressesReader Aids14 CFR 121
30Finding Documents in Past Federal Register Issues; Indexes Federal Register Indexissued quarterlyannual cumulative issueCentral Index System (CIS) Federal Register IndexUse the Federal Register indexes to find regulations that were issued after the date of the most recent volume of the Code of Federal Regulations for that agencyDaily Federal Register Index to CFR Parts Affected during the current month
31Federal Aviation Administration Federal RegisterPrint IndexPagesThis is the cumulative annual Federal Register Index for 2001There were 67,702 pages published in daily Federal Register issues in 2001.There are many Federal Aviation Agency actions listed in this index, but the final regulation published on January 15, 2002, concerning flightcrew compartment doors will be in the 2002 issues of the index.Federal Aviation Administration
32Finding Documents in Past Federal Register Issues LSA LSA (List of CFR Sections Affected)Printed each monthKeyed to CFR parts and sectionsOnline atTitle 14
33Federal RegisterAction andSummaryUSCA Authority(f)Final Rule as published in the Federal Register on January 15, 2002, and amending, among other regulations, 14 CFR
34Finding Documents in the Federal Register Database (FR) on Westlaw Use a Find request when you know issue and page number of a Federal Register documentWestlaw searches in the FR databaseNatural Language searching works well.Use Terms and Connectors field searches when you need to retrieve a specific document(s) or have specific criteria as to agency and nature of document.Federal Register issues go online the same day that they appear in print.Westlaw coverage in FR begins with July, 1980.
35Other Tips for Searching the Federal Register (FR) Database on Westlaw Useful FieldsThe prelim field (PR) contains the type of document, the issuing agency and any sub-agency, docket numbers, affected portions of the CFR, and other preliminary materialsThe caption field (CA) contains the subject matter of the documentThe summary field (SU) contains a summary of the document, if availableThe image field (IM) is a browsable field that shows which images are available for offline printing
37Code of Federal Regulations CFRCode of Federal RegulationsThe regulations first published in the Federal Register on a daily basis are then codified in the Code of Federal Regulations.The regulations that are published chronologically in the Federal Register are codified and arranged by title, then by chapter (one agency’s regulations) and finally by subject in the CFR.The CFR is divided into 50 titles, just like the USCASome titles covering the same subjects are numbered the same in the CFR and in the USCA; others are not.Each title is divided into chapters, subchapters, parts, and sections.A regulation is cited by title, part, and section, e.g.,14 CFR (Title 14, Part 121, Section 313).
38CFRThe soft-cover volumes of the CFR are issued each year in sets on a staggered, quarterly basis:Titles 1– 6 are current through January 1Titles 17 – 27 are current through April 1Titles 29 – 41 are current through July 1Titles 42 – 50 are current through October 1Each new set contains the text of all regulations in force as of the current through date. New regulations are merged with, and revoked regulations are deleted from, the previous set of regulations.The color of each set of volumes is changed every year; a current full set may contain different colored volumes, depending on the time of the year.Title 3, which contains Presidential Proclamations and Executive Orders, is always white.
39Research Tools in Each Volume of the CFR Table of Contents listing all material within the book: titles, subtitles, chapters, subchapter(s), parts, and sectionsSubtitles are referenced to page numbersMaterial Approved for Incorporation by Reference ,which is regulatory material not published in the Federal Register or CFRHas force of law as if it were published in the Federal Register and CFRMostly technical standards, state law, and regulationsTable of CFR Titles and ChaptersRedesignation Tables to help trace new location of parts and sections of a regulationList of CFR Sections Affected in the volume
40Table of Contents CFR At the beginning of each print issue Documents are listed by agencies in alphabetical orderCross-referenced from Cabinet departments to subordinate agenciesEach agency document is arranged by categoryRulesProposed RulesNoticesPresidential documents are arranged as follows:Executive OrdersProclamationsDeterminations/Memoranda
41Table of Contents Title 14 Chapter 1 Parts 60-139 CFRTable of ContentsTitle 14Chapter 1PartsSubchapter DPart 121CFR titles are broken down by Chapter, Subchapter, and Part.Immediately preceding each part is a Table of Contents for the individual regulations contained within that part.
42Title 14 Parts 60-139 CFR Paragraph f Regulation 121.313 Paragraph (f) discusses requirements for the door to the flight-crew compartment.
43Material Approved for Incorporation by Reference Title 14 Parts 60-139 CFRMaterial Approvedfor Incorporationby ReferenceTitle 14PartsMaterial Approved for Incorporation by Reference is regulatory material not published in the Federal Register or CFRHas force of law as if were published in the Federal Register and CFRMostly technical standards, state law, and regulations
44Table of CFR Titles and Chapters PartsRedesignation TableTable of CFR Titles and ChaptersTable of CFR Titles and ChaptersRedesignation Tables to help trace new location of parts and sections of a regulation
45List of CFR Sections Affected Title 14PartsList of CFR Sections AffectedList of CFR Sections Affected in each volume indicates the type of change that was made.
46Access to the CFR: Index and Finding Aids CFR Index and Finding Aids is single volumeRevised annuallyIndex with subject entries and agency names in one listingSince 1980, a thesaurus has assured that all agencies use the same terminology for subject headingsParallel Table of Authorities and RulesList of Agency-Prepared Indexes Appearing in Individual CFR Volumes
47Index and Finding Aids Volume Index CFR Index 14 CFR 121 Subject entries and agency names are in one listingAccess by subject or agencyReferences CFR title and part numbers, not individual regulations
48List of Agency-Prepared Indexes Appearing in Individual CFR Volumes CFR IndexIndex and FindingAids VolumeList of Agency-PreparedIndexes Appearing inIndividual CFR VolumesUSCA AuthoritiesThe List of Agency-Prepared Indexes provides information on how to locate agency indexes in various CFR volumes.The Parallel Table of Authorities shows where regulations promulgated under statute or Executive Order have been placed in the CFR.
49List of CFR Titles, Chapters, Subchapters, and Parts CFR IndexIndex and FindingAids Volume14 CFR 121List of CFR Titles, Chapters,Subchapters, and PartsThe list of CFR Titles, Chapters, Subchapters, and Parts provides an outline of the CFR organization.
50Alphabetical List of Agencies CFR IndexIndex and FindingAids VolumeAlphabetical List of AgenciesAppearing in the CFRThe Alphabetical List of Agencies Appearing in the CFR is another means of accessing the regulations.
51Updating Regulations in Print CFRUpdating Regulations in PrintLSA: List of CFR Sections AffectedIssued monthlyIndicates final and proposed changes made since the last publication of the CFR setCFR Parts AffectedIn each volume of the Code of Federal RegulationsIncorporated in the cumulative list in the Reader Aids sectionCFR Parts Affected in this IssueIn each daily issue of the Federal Register
52The Code of Federal Regulations Database (CFR) on Westlaw The CFR database includes all 50 titles.The database incorporates all but the most recent changes to the Code of Federal Regulations.There is an approximately two-week lag between publication of the Final Rule in the Federal Register and incorporation into the CFR database.Historical CFR databases date back to 1984.
53The CFR on Westlaw Useful fields The prelim field (PR) contains the CFR title and other headings that precede the captionThe caption field (CA) contains the CFR section number and headingThe notes field (NO) contains editorial and effective date notesThe credit field (CR) contains USCA authority and Federal Register source notes
55Decisions of Administrative Bodies Administrative DecisionsDecisions of Administrative BodiesDecisions of agencies can broadly be classified as:Advisory opinionsnot bindingauthoritative interpretations of statutes and regulations that indicate agency policy and expectationsInformal Adjudicationsgoverned by special statutory requirements or agency’s own regulationsdue process concerns applydiscretionarygenerally not reviewable by a courtconducted by presiding officers and not by independent Administrative Law Judges (ALJ)
56Formal Agency Decisions Formal Adjudications: Quasi-judicial decisionsreported much as case law isusually delivered in written formatthe role of the court is often performed by an independent Administrative Law Judge (ALJ) or agency commissioner(s).proceedings are usually fact-finding inquiries into how regulations apply to a particular situationagencies are not strictly bound by prior decisions but the decisions have precedential value so attorneys who practice before an agency can use the decisions as an important primary source of the law.adjudicate disputes arising out of the interpretation or violation of enabling statutes or regulations
57Formal Decisions Publication of Decisions Administrative DecisionsFormal DecisionsPublication of DecisionsOfficial versions are available in most law and university libraries that are official depositories of the U.S. Government Printing OfficeUsually issued first as a slip opinion or advance sheetMany agencies eventually bind their decisions in permanently numbered volumesSome agencies publish only in pamphlet format, or only on microficheIn any format, most decisions have some sort of finding aids, such as an index, table of cases, or tables of statutes or regulations cited
58Formal Decisions Administrative Decisions Publication of decisions Unofficial versions are reproduced in looseleaf services, sometimes with sequentially numbered bound volumes.Unofficial versions tend to be far more current and better indexed than the official decisions.Unofficial versions are also placed on Westlaw. Westlaw contains the decisions of many federal and state agencies, including;Federal Communications Commission, Federal Labor and Employment Commission, Equal Employment Opportunity Commission, Internal Revenue Service, Interstate Commerce Commission, National Mediation Board, Federal Trade Commission, Federal Maritime Commission, Department of the Interior, Attorney General, and Department of Agriculture.
59Administrative Decisions Unofficial decisions of the Federal Energy Regulatory Commission as published by CCH
60Finding an Agency Decision Administrative DecisionsFinding an Agency DecisionEach agency has its own method of indexing decisions so few generalizations can be made.Official versions are usually more poorly indexed and slower to be indexed than unofficial versionsIndividual volumes may have finding aids, such as a table of contents, a table of cases reported, a list of opinions/decisions/orders, an index by type of action, a topical index, or an index-digest.Some sets of decisions may have finding aids, such as an index or digest for the set.Secondary sources, such as the American Law Reports or law review articles, often discuss agency decisions in the context of discussing a court case or a statute.
61Finding an Agency Decision on Westlaw Administrative DecisionsFinding an Agency Decision on WestlawWestlaw is probably the fastest way for an attorney who does not regularly practice before a particular agency to find a decision or decisions that discuss a particular topic.
62KeyCite for Regulations KeyCite lists federal administrative decisions that have been cited in court casesClick the Citing References link.Click the Limit KeyCite Display button at bottom of screen.Deselect all but Administrative Decisions check box.Click Apply.
63Updating an Agency Decision Administrative DecisionsUpdating an Agency DecisionPrecedent might not have as strong a role in updating an administrative decision as it would in case law but you still need to knowWhether judicial review has overturned an agency decisionWhether later agency decisions have disapproved of the decisionThe agency’s position on a particular issue
64A Partial List of Agencies Whose Decisions Can be Updated in KeyCite Administrative DecisionsA Partial List of Agencies Whose Decisions Can be Updated in KeyCiteFederal Government Contracts BoardFederal Securities and Exchange CommissionInternal Revenue Service (rulings and memoranda)National Labor Relations BoardOffice of Comptroller GeneralPatent OfficePublic Utility ReportsTax CourtBoard of Immigration AppealsEqual Employment Opportunity CommissionEnvironmental Protection AgencyFederal Commerce CommissionFederal Communications CommissionFederal Energy Regulatory Commission
65Updating Using Westlaw as a Citator Administrative DecisionsUpdating Using Westlaw as a CitatorAccess a database containing case law, administrative law, analytical materials, or any other type of material that might contain a discussion of the administrative decision.Devise a Terms and Connectors search that will include some of the essential items in the citation of the decision within a few words or the same sentence of the party or agency name.Database: FENV-EPAQuery: “asbestos removal” /s e.a.d.
66Judicial Review of Agency Decisions Once an Administrative Law Judge has issued a decision, that decision can usually be appealed to a higher entity within the agency.Those appealing an agency decision must usually exhaust agency remedies before moving the action to a federal court.The final agency decision can usually be appealedto a federal court of appeals if Congress has provided an appeals processto the federal district court if no provision for appeal has been specified
67Judicial Review of Agency Decisions Administrative DecisionsJudicial Review of Agency DecisionsThe appeal of these decisions can be found in the Supreme Court Reporter®, the Federal Reporter®, and the Federal Supplement® in print and in the corresponding databases on Westlaw:Supreme Court cases are in the SCT databaseFederal Reporter cases are in the CTA databaseFederal Supplement cases are in the DCT databaseSummaries of these cases can be found in West’s Federal Practice Digests®, and the United States Supreme Court Digest®SCT-HN, CTA-HN, and DCT-HN are the corresponding databases on Westlaw.
68Judicial Review of Administrative Decisions: Common Issues ConstitutionalityAgency acted outside the scope of delegated authorityProcedural due process violationsArbitrary and capricious decisionAbuse of agency discretionSeparation of powersWhen original jurisdiction can be granted to the United States District CourtInterpretation of the language of the enabling statute or regulation
69When Federal District Court has Original Jurisdiction over Agency Matter When an agency is the plaintiff (See 28 USCA 1345)When there is a federal question (See 28 USCA 1331)When there is a mandamus action to compel an agency to perform a duty owed to plaintiffWhen there is a specific statute authorizing original jurisdiction in the federal district courtSome examples of matters of original jurisdiction for the district courtWhat constitutes an interpretive ruleAgency compliance with Sunshine ActExhaustion of remedies under Privacy ActWhat constitutes agency “action”, “order,” decision,” final order,” or “final decision” within meaning of statute authorizing judicial review
70We hope that you have found this lesson helpful. Thank You…We hope that you have found this lesson helpful.If you have more Westlaw education or training needs, please contact your Academic Account Manager or call the Reference Attorneys at WESTLAW.If you have feedback on the Instructional Aids Series, please contact Erin Jensen.