Post on 03-Dec-2014
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ADMINISTRATIVE LAW: REGULATIONSProfessor Lisa, Smith-Butler, Advanced Legal Research, Fall 2014
Regulations
A third and final source of primary U.S. legal authority is promulgated under the auspices of either the Executive branch or Legislative branch.
Regulations are made by administrative agencies, operating under the power of the Executive branch via Presidential Executive Order or under the power of the legislative branch via power delegated to the agency by Congress via statutory provision.
Regulations
Administrative agencies are frequently described as having quasi-judicial and quasi-legislative functions.
They publish rulings, issue orders, provide advisory opinions, and render decisions that arise from controversies involved in the interpretation and application of the applicable regulation.
As Bob Berring describes in Finding the Law (12th ed. 2005), “Administrative agencies regulate behavior, make judgments and set limits. Often the agency will interpret its own rules and issue its own opinions.” See Berring at 230.
Tools to Help Locate Regulations In order to effectively locate federal regulations on a topic,
it is best to understand the structure and mission of the agency.
The United States Government Manual provides brief background information about agencies as well as the names, titles, telephone numbers and email addresses of important agency personnel. This information is essential in assisting the legal researcher with understanding the agency.
Check the underlying legislation in order to further understand the agency’s mission.
Call agency personnel to find out how they understand, interpret and apply the regulations that they are enforcing. Use the Federal Yellow Book, a directory, to help locate agency personnel.
Next screen, then scroll down the page.
Where are federal regulations published?
Initially federal regulations are first published in the Federal Register (FR).
The Federal Register began publication in 1936. Publication began because of confusion regarding agency rules. Congress enacted the Federal Register Act, 49 Stat. 500 in 1935.
Publication in the Federal Register of any regulation is deemed to provide constructive notice of the regulations.
The Federal Register is published every business day and is a chronological arrangement of federal regulations, similar to the Statutes at Large.
What’s in the Federal Register
The Federal Register contains the following:
Proposed agency rules; Final agency rules; Presidential proclamations
and executive orders; Notices of agency meetings; List of CFR Parts Affected; and Reader Aids.
Where can I find the Federal Register (F.R.)?
The Federal Register is available in both print and electronic formats. In print format, it generally falls under LC classification number KF 70 or follows the CODE OF FEDERAL REGULATIONS in a library’s Federal section.
It is can be found electronically in: Bloomberg Law Casemaker FDsys HeinOnline Lexis Advance WestlawNext
Federal Register
Practitioners and other legal researchers, particularly those in heavily regulated areas, check the Table of Contents in the Federal Register on a daily basis.
Fee based electronic services, such as Westlaw and Lexis, initially were the only electronic resources that allowed the creation of email Alerts. Today, alerts are available with low cost, free and fee based services.
Bloomberg Law
Casemaker
FDsys
HeinOnline
Lexis Advance
WestlawNext
Final Regulations: CODE OF FEDERAL REGULATIONS (C.F.R.)
To locate final regulations that are presently in force, you will need to consult the Code of Federal Regulations (CFR) which is published annually.
The CFR is a subject arrangement of federal regulations that is analogous to the United States Code (U.S.C.) The CFR is also arranged in 50 titles.
The CFR contains both final agency regulations as well as Executive Orders (Title 3) of the President.
Publication of the C.F.R.
The CFR is published annually. Publication is staggered and is as follows: Titles 1-16 January Titles 17-27 April Titles 28-41 July Titles 42-50 October
Where can I find the C.F.R.?
The CFR is published in both print and electronic formats.
Electronically, the CFR is available at: Bloomberg Law Casemaker FDsys HeinOnline Lexis Advance Westlaw Next
Bloomberg Law
Casemaker
FDsys
HeinOnline
Lexis Advance
WestlawNext
Federal Register & the CFR
Thus the Federal Register (FR) is analogous to the Statutes at Large in that it is a chronological arrangement of regulations as first promulgated and published by federal agencies. With the Federal Register, the legal researcher can do historical regulatory research.
The Code of Federal Regulations (CFR) is analogous to the United States Code in that it is a subject arrangement of the regulations that are currently in force. With the CFR, the legal researcher can locate regulations that are currently in force.
Locating Applicable FR & CFR Provisions
As with cases and statutes, there are ways to locate applicable CFR and FR provisions.
You can locate applicable FR and CFR provisions by: citation; or index (print) or keyword/subject
searching (electronic.)
What will you check first?
To find out where a final federal regulation is first published, always check out the Federal Register (Fed. Reg.)
Proposed and final federal rules are always first published in the Federal Register which is a chronological arrangement of proposed and final rules, agency notices and Executive Orders.
Finding a relevant final rule or searching via keyword
Suppose we want to locate the final regulation that is concerned with human space flight requirements for crew and space flight participants that became a final rule in 2006. Where would this final rule initially be published,
i.e. what resource would you consult? What search terms would you use? What is the citation for the final rule where
initially published? What is the citation for the final official
codification publication?
FDsys
The initial publication…
The final official publication…
The answers…
1. Federal Register
2. “human space flight requirements” & final rule
3. 71 F.R. 75616 (2006.)
4. 14 C.F.R. Part 460 (2014.)
Updating a federal regulation After you have located the appropriate regulation,
as with cases and statutes, it too must be updated. Begin updating a federal regulation by consulting
the List of Sections Affected (LSA) which is published monthly.
Check the most recently published LSA. Check for your title and section to see if it has been superseded by a later rule published in the Federal Register.
For the months that the LSA is not available, check the List of CFR Parts Affected in the most recent FEDERAL REGISTER.
How does this work?
Suppose you want to update 14 C.F.R. Part 460 (2014.). Use October 1, 2014 as the date from which updating begins.
Locate the most recent LSA. According to FDsys, the most current issue of the LSA
is August 2014. Use this issue to check your citation. You then need to check the List of CFR Parts
Affected in the CFR Parts Affected section of the Federal Register.
You may check by day, week, month or a selected date range.
Once you finish this, you’ve updated your federal regulation!
Courts’ Interpretation of Federal Regulations
You will next want to check Shepard’s Code of Federal Regulations Citations or KeyCite to see how courts have interpreted regulations involved in litigation.
This final step will complete the updating process.
Examine 14 C.F.R. 460 (2014)
LSA directs you to 79 F.R. 11051 (2014)
Finished?
Are we through? No. We must next browse the CFR Parts
Affected in the Federal Register on the LSA screen.
Don’t forget to Shepardize!
Searching F.R. via Citation
Locate 79 F.R. 57557 (2014.) With what topic is it concerned? On what date was it published?
Go to FR on FDsys
Browsing the C.F.R. via FDsys
Locating a C.F.R. Rule by citation: 26 C.F.R. Part 1
Regulations as Administrative Agency Decisions
In addition to the publication of orders (the quasi legislative function) of administrative agencies, frequently these agencies also issue decisions, i.e. the quasi-judicial function.
Some federal agencies, such as the FCC or NLRB, are empowered to both publish rulings and then issue decisions to enforce these rulings.
Where can I find these decisions? They are officially published by the administering agency and the Government Printing Office. Unofficial publications are frequently produced by loose leaf services such as BNA or CCH. HeinOnline, Lexis Advance and WestlawNext all provide access.
BNA: Daily Labor Report
CCH: Social Security Reporter
HeinOnline
Lexis Advance
WestlawNext
Print Publications of Federal Administrative Agencies
Official print publications of federal administrative agencies include: Court Decisions Relating to the National Labor Relations
Act Decisions of the Comptroller of the Currency Decisions & Orders of the National Labor Relations Board Federal Trade Commission. Decisions General Wage Determinations Issued Under the Davis-
Bacon & Related Acts Interstate Commerce Commission Occupational Safety & Health Commission. Decisions Securities and Exchange Commission. Decisions and
Reports
UVA: Subject Arrangement of Administrative Agency Decisions
In addition to official federal sites, the University of Virginia Library compiled a subject arrangement of federal administrative decisions with hyper links to the decisions from the applicable agency.
South Carolina’s Regulations South Carolina’s final administrative
agency regulations are published in the print source, the South Carolina Code of Regulations, a subject arrangement of South Carolina’s regulations that are presently in force. It is analogous to the federal Code of Federal Regulations (CFR.)
This resource consists of 139 chapters and includes a general index, statutory cross references and repealed and transferred tables.
Lexis Advance South Carolina Regulations
WestlawNext
Is there a SC equivalent to the FR? Yes
South Carolina State Register South Carolina’s State Register
Administrative Weekly is published in print and electronic format (1999 – Present.)
This resource provides access to proposed South Carolina agency regulations in a chronological arrangement.
It also publishes Executive Orders and notices of agency meetings.
It can be compared to the federal government’s Federal Register (FR) publication.
Other States
Check out Findlaw @ http://www.findlaw.com or Washlaw @ http://washlaw.edu for links to the administrative rules and regulations in all 50 states.
Findlaw
Washlaw
Conclusion
Federal and state administrative agencies derive their powers to act from either the Executive or Legislative branch.
Administrative agencies are both quasi legislative and quasi judicial in nature, creating rules as well as issuing decisions.
Questions? Contact the Reference Desk @ reference@charlestonlaw.edu or 843.377.4020.