Administrative law research

April 1, 2008

Melanie Dunshee

Agenda

Where regulations come fromDelegation doctrine

Rules and regulationsprocess, publication, tracing history

Monitoring regulatory activities Agency judicial materials Finding administrative materials

LexisNexis/Westlaw strengthsspecialized services – CCHAgency websites

Delegation

Legislative power given to Congress in the U.S. Constitution

Congress delegates its lawmaking authority to an agency (enabling legislation)

Justifications:-More flexible and quicker action-Combination of legislative, executive, and judicial solutions

Examples

15 USC 45 (a) Declaration of unlawfulness; power to prohibit unfair practices (a) Declaration of unlawfulness; power to prohibit unfair practices; inapplicability to foreign trade

(1) Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful.

(2) The Commission is hereby empowered and directed to prevent persons, …. from using unfair methods of competition in or affecting commerce and unfair or deceptive acts or practices in or affecting commerce.

15 USC 57a (a) Authority of Commission to prescribe rules and general statements of policy (1)Except as provided in subsection (h) of this section, the Commission may prescribe-- (A)interpretive rules and general statements of policy with respect to unfair or deceptive acts or

practices in or affecting commerce (within the meaning of section 45(a)(1)of this title), and

(B)rules which define with specificity acts or practices which are unfair or deceptive acts or practices in or affecting commerce (within the meaning of section 45(a)(1)of this title), except that the

Commission shall not develop or promulgate any trade rule or regulation with regard to the regulation of the development and utilization of the standards and certification activities pursuant to this section. Rules under this subparagraph may include requirements prescribed for the purpose of preventing such acts or practices.

Food and Drug Administration

12 USC § 371. Regulations and hearings

(a) Authority to promulgate regulations

The authority to promulgate regulations for the efficient enforcement of this chapter, except as otherwise provided in this section, is vested in the Secretary.

(b) Regulations for imports and exports

The Secretary of the Treasury and the Secretary of Health and Human Services shall jointly prescribe regulations for the efficient enforcement of the provisions of section 381 of this title, except as otherwise provided therein. Such regulations shall be promulgated in such manner and take effect at such time, after due notice, as the Secretary of Health and Human Services shall determine.

(c) Conduct of hearings

Hearings authorized or required by this chapter shall be conducted by the Secretary or such officer or employee as he may designate for the purpose.……. (h) Guidance of documents

(1)(A) The Secretary shall develop guidance documents with public participation and ensure that information identifying the existence of such documents and the documents themselves are made available to the public both in written form and, as feasible, through electronic means. Such documents shall not create or confer any rights for or on any person, although they present the views of the Secretary on matters under the jurisdiction of the Food and Drug Administration.

Wild Bird Conservation Act

16 USC § 4904. Moratoria on imports of exotic birds covered by Convention (2) Termination of moratorium

A species of exotic birds shall be subject to the prohibition on importation established by paragraph (1) until the Secretary, after notice and an opportunity for public comment--

(A) determines that appropriate remedial measures have been taken in the countries of origin for that species, so as to eliminate the threat of trade to the conservation of the species; and(B) makes the findings described in section 4905(c) of this title for the species and includes the species in the list published under section 4905(a) of this title.

16 USC § 4905. List of approved species (a) Listing

(1) In general One year after October 23, 1992, and periodically thereafter, the Secretary shall, after notice and an opportunity for public

comment, publish in the Federal Register a list of species of exotic birds that are listed in an Appendix to the Convention and that are not subject to a prohibition or suspension of importation otherwise applicable under section 4904(a), (b), or (c) of this title.

(2) Manner of listingThe Secretary shall list a species under paragraph (1) with respect to--

(A) the countries of origin from which the species may be imported; and (B) if appropriate, the qualifying facilities in those countries from which the species may be imported.

Rulemaking

Administrative Procedures Act, 5 U.S.C. 553procedural process for implementing legislative power

Notice and Comment (informal rulemaking)-publication of proposed rules-period for comments and participation in the decision making-publication of final rule

same force of law as legislation

Other administrative materials

Guidelines, guidance documents Policy statements on how agency intends to act Interpretations, agency view of what the law

requires Investigation, fact gathering Enforcement activities and quasi-judicial

functions

Varies by agency

Publication of regulatory materials

Federal Register (FR)daily publication for all agency activitiesLexisNexis and Westlaw – July 1980 –HeinOnline – 1936 – (use freely in summer with NetID)GPO Access – 1994 – always free

Code of Federal Regulations (CFR)compilation of final regulations in forceLexisNexis and Westlaw – 1980 – (note currency)HeinOnline - 1938 - (use freely in summer with NetID)GPO Access – 1996 – browse and search

e-CFR – currently updated version

Tracing Regulation History

Similar to legislative history Federal Register contains explanations of

agency process, summaries of comments, changes with final regulation

Monitoring developments

Daily table of contentsGPO Access Westlaw – FR-TOC

Alert services Westalw – Agency Tracker – emailLexisNexis – Federal Regulation TrackingCCH databases

Decisions and Rulings

Hearings and decisions by administrative law judgesNOT published in FR, but may be referenced there

About 15 agencies officially report decisions (Bluebook T.1)

UVA list HeinOnline – US Federal Agency Library LexisNexis and Westlaw

NOT in notes of decisions in Code, but look for links

Finding and discovery

Code does not usually connect with its related regulations- But recently more Westlaw and LexisNexis links

Search CFR independently of statute (LexisNexis/Westlaw, GPOAccess)

Usual techniques of secondary sources, references in cases

Specialized research tools (e.g. CCH, BNA) Agency websites