Regulated Industries & the Rulemaking Process
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Administrative Legal Research Presentation given to Advanced Legal Research Class at William Mitchell College of Law in St. Paul, Minnesota on September 13, 2013 by Neal R. Axton, JD, MLIS.
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Regulated Industries & the Rulemaking Process
- 1. Living La Vida ’Lectric Regulation, Law & Policy in the 21st Century Neal R. Axton Information Resources
- 3. Law Reviews & Journals
- 4. Segment Searching in WMLR
- 5. Court Cases – Segment Searching
- 6. Administrative Law on Lexis Classic
- 7. Segment Searching – aka Metadata Search
- 10. Regulatory Law & Practice • Some Highly Regulated Industries – Securities: Stocks, Bonds, Derivatives • Levels of Regulation: International, Federal, State, Local – Transportation • Airlines (Federal) • Railroads (Federal) • Trucking (State and Federal) • Passenger Vehicles (Local, State & Federal) – Nuclear Power (Federal) – Conventional Power (State) – Medicine • Doctors (State) • Pharmacists (State) • Pharmaceuticals (Federal) • Medical Devices (Federal)
- 11. Research Planning • CFR – Hard Copy CFR – FDsys CFR – CFR on West/Lexis/Bloomberg • Annotations? – eCFR • Federal Register – Hard Copy Federal Register – FDsys Federal Register – Federal Register on West/Lexis/Bloomberg – Regulations.gov
- 12. Research Paradigms Revisited • Vendor Paradigm –West –Lexis –Fastcase –Versuslaw –Loislaw –Google Scholar –Wikipedia • Data Silos
- 13. Doctrinal Paradigm • Contracts • Torts • Property – Personal Property – Real Property – Intellectual Property • Trade Secrets Law • Rights of Publicity and Privacy • Patent, Copyright, Trademark • Civil Procedure – Alternative Dispute Resolution • Constitutional Law • Criminal Law
- 14. Legal Process Paradigm – How Law is Drafted & how Bill becomes a Law – How Law is Codified (eg US Code ) – Codification becomes Regulation (eg Federal Register & CFR) – How Law is Enforced (Executive Branch) – How Law is Litigated • Judges –Administrative Law Judges (ALJ) – How Law is Changed
- 15. Cyclical Nature of Law Legislation & Codification Presidential Signing or Veto Regulation & Enforcement Interpretation & Gap Filling
- 16. Cyclical Nature of Law Legislation & Codification Approval or Veto Regulation & Enforcement Interpretation & Gap Filling
- 17. Codification • The process of formalizing and numbering a body of law • Napoleonic Code • Justinian Code • National Fire Code • Uniform Commercial Code • Minnesota’s UCC @ Chapter 336
- 21. Cyclical Nature of Law Congress Legislation & Codification Executive (President) Executive Orders Executive (Agencies) Regulation & Enforcement Judiciary Injunctions & Invalidation
- 22. Cyclical Nature of Law Congress Legislation & Codification Executive (President) Executive Orders Executive (Agencies) Informal Rule-Making: Federal Register & CFR Judiciary Injunctions & Invalidation
- 23. Compare and Contrast Statutes •Public Laws – Chronological •U.S. Code – Topical Rules aka Regulations •Federal Register – Chronological •Code of Federal Reg.’s – Topical
- 24. Delegation of Authority • Congress – Plenary Power –Delegates some power to Agency via Statute –Agency may not exceed its authority – Agency exercises authority • Transacting Business – GPO publishes documents – FEMA responds to tornados and floods • Making Regulations (agency rules) • Issuing Licenses (e.g. ATF) • Enforcing Civil & Criminal Penalties (e.g. IRS)
- 25. Regulatory Intent • Proposed and Final Rules in Federal Register (FR) – Summary, Preamble then Rule – CFR proposed location – Enabling Legislation Cite • Final Rules in the Code of Federal Reg’s (CFR) – Final Rule with Fed. Reg. Cite & Enabling Legislation Cite – NO Preamble
- 26. Informal Rule-making Process • Advanced Notice of Proposed Rulemaking • Notice of Proposed Rulemaking • Comment Period • Final Rule • Variations on a theme • Interim & Emergency Rules
- 27. Informal Rule-making Process • Advanced Notice of Proposed Rulemaking • Notice of Proposed Rulemaking • Comment Period • Final Rule • Variations on a theme • Interim & Emergency Rules
- 28. Delegation of Authority • Congress – Plenary Power –Delegates some power to Agency via Statute –Agency may not exceed its authority –Two potential problems • Agency does NOT use authority, ignores Congressional mandate • Agency exceeds its mandate • Agency must assess scope of that power and move to implement
- 29. Chevron Weight • In Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837 (1984), 2 stage analysis: • Review statute. If plain language of delegation of authority is clear, “that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” • If the statute is ambiguous, step two is to determine whether the agency's interpretation is a “permissible construction of the statute.” • If so, court defers to the agency’s interpretation.
- 30. Arlington v. FCC • Arlington, Texas v. FCC, ___ US ___, __ S. Ct. ___ 2013 WL 2149789 (May 20, 2013). • Dispute over location of cell phone towers and municipal obstruction • Does Agency have power to decide if its delegation of authority includes power to regulate municipalities? • Cf. Necessary and Proper Clause, Art. 1, sec. 8, cl. 18 • Professor Jonathan H. Adler: “[T]here should be no… question of whether a statute confers interpretive authority or jurisdiction to an agency,” because “the question of whether such authority has been delegated to an agency is antecedent to the question of whether the authority was properly exercised.” – 81 US Law Week 1651 (2013).
- 31. Other Items of Interest in Fed. Reg. • Notices of Hearings • Notice of Closed Door Meetings with Industry • Notices of Interim Rules • Consent Decrees aka Consent Orders • Regulatory Agenda & Unified Agenda (Agency’s To Do Lists) • Public Submissions (Comments) • Supporting & Related Materials – Computerized Control System for Static Pile Composting of Dairy Manure – Melting Emission on Gray, Ductile and Compacted Flake Irons – Notes from telephone conversation between US EPA Region 4 and Eastern Research Group representative – Government Correspondence
- 35. Power Searching
- 39. A Slight Detour • Federal Law –Statutes = US Code –Regulations = CFR • State Law –Statutes = Minnesota Statutes –Regulations = Minnesota Rules • Rules = Agency Rules in context
- 40. Jurisdiction • United Nations • Foreign • Federal • State • Tribal • County • Municipal Corporation aka City • Quasi-Municipal Corporation
- 42. Jurisdiction • United Nations • Foreign • Federal • State • Tribal • County • Municipal Corporation aka City • Quasi-Municipal Corporation
- 43. Informal Rule-making Process • Advanced Notice of Proposed Rulemaking • Notice of Proposed Rulemaking • Comment Period • Final Rule • Variations on a theme • Interim & Emergency Rules
- 44. Notice of Proposed Rulemaking • Fancy Name for Proposed Rule
- 45. Metadata of NPRM
- 46. Organizational Info (Metadata) • Agency Docket Numbers • Federal Register Docket Numbers • Regulations.gov Docket Numbers • Regulation Identification Numbers (RIN) • Federal Register Citation • Federal Register Date • Location in the CFR, Title and Part • Enabling Legislation – US Code
- 52. Citation?
- 53. Rule 14 – Administrative Materials • Rule 14.2(a) – Final Rules • Rule 14.2(b) – Proposed Rules
- 54. Variety of Documents in Federal Register • Meeting Notices • Notice of Intent • Interim Rules • Temporary Rules – Emergency Rules and Emergency Powers • Availability of Guidance • Guidance Documents • Reports – Required by Statute – Informational Notices
- 55. Emergency Powers • Topical Research: Causeway Cannibal & Illegal Drugs
- 60. Final Link = Earliest Document
- 61. Each entry has its own docket
- 63. Very End of DEA Notice
- 64. Changing 3 lines in U.S. Code
- 65. Review • Preamble – Summary – Background – Notice of Proposed Rulemaking • Regulatory Intent • Regulatory Analyses • List of Subject Headings • Enabling Act Citation • Language to be inserted into CFR – If and only if final rule published
- 71. Recap • Notice of Intent – Summary –Preamble – Cite to Enabling Legislation – Amendment to CFR • Next: Notice of Guidance Availability
- 72. Guidance • Delegation of Authority – Rule-Making or Regulation Promulgation – e.g. Emergency Rooms treat uninsured – Policy – Uninsured treated based on seriousness of injury (triage) – Procedures – EMTs do intial triage, then nurse, then doctor – Guidance • Help local agencies prepare – e.g. Minnesota Department of Health – e.g. Ramsey County Department of Health – Grants • Strings attached, e.g. Emergency Managers
- 75. Today’s Take-Aways • Federal Register – Chronological – Newspaper of Federal Government – Emergency Regulations & Interim Regulations – Notice & Comment Rulemaking – Preamble, Proposed Rule, and Enabling Legislation Cite – Preamble, Final Rule, and Enabling Legislation Cite • Code of Federal Regulations (CFR) – Topical Organization aka Codification – Includes ONLY Final Rules – NO Preamble – Cites back to and Updated by Federal Register • Executive Orders – President Makes Law by Signing Order
- 76. Advanced Topic: Tracking Laws from Enabling Act through Regulation Promulgation
- 77. Power Sharing Congress Legislation & Codification Delegation of Authority Executive (Agencies) Regulation & Enforcement
- 81. Atomic Energy Act of 1954
- 83. Say what mean, mean what you say • Atomic Energy Act (1946) • Atomic Energy Act of 1954 – Popular Name Tables in USCA & USCS – Where Law was Codified into US Code • Public Law 83-703 = modern notation – Public Law 703, 83rd Congress – 83rd Congress – 703rd Law passed • Statutes at Large – Session Laws of Congress – Abbreviated as Stat. – Citation Rule
- 84. Wikipedia as a starting place
- 88. The AEA
- 89. Public Law -> Codification
- 90. Sections 28-61
- 91. Sections 231-274
- 92. Sections 320 - 1805
- 93. Title 42 of the U.S. Code
- 94. Atomic Energy Act • Governs the Nuclear Regulatory Commission (NRC) • NRC has rule-making power • Where are those rules found in the CFR?
- 95. Parallel Table of Authorities and Rules
- 97. To start find top of title 42 of the U.S.C.
- 98. Looking for 42 USC 2011 et seq.
- 99. CFR Titles • Atomic Energy Act is primarily codified in the CFR at: • Most Title 10, multiple parts • Title40 parts 191, 192 and 194
- 100. Title 10, part 20
- 102. 10 CFR Part 100
- 103. The Easy Button
- 104. Parallel Table of Statutory Authorities and Rules • Part of Code of Federal Regulations (CFR) –Required by 1 CFR 8.5 • Details how is US Code implemented by agencies • Updated Annually
- 105. Neal’s Default Research Plan • Primary Law –Statutes –Regulations –Case Law • Legal Commentary / Secondary Sources • Constitutional Law • Jurisdiction Overlay: Intl, Federal, State, Local
- 106. Alphabetical
- 107. Dodd-Frank
- 108. Title 12
- 112. Title 42 of the CFR?
- 113. More small text…
- 114. Color coding illustrates titles affected • End of the popular name table entry for Dodd-Frank Act
- 115. Title 7 of U.S.C. – Agriculture
- 116. Title 12 of U.S.C. – Banks and Banking
- 117. Title 15 Commerce and Trade
- 118. Title 18 Crimes & Criminal Procedure
- 119. Title 22 Foreign Relations and Intercourse
- 120. Title 31 Money & Finance
- 121. Title 42 Public Health and Welfare
- 122. Worth adding to your research log! • Public Law 111-203 • 203rd law passed by 111th Congress • July 21, 2010 –Date signed by President typically • 124 Stat. 1376 • Volume 124 • Statutes at Large • Page 1376
- 123. Table of Parallel Authorities • Includes Appendices to the U.S. Code • Includes Statutes at Large citations • Includes some Public Law citations • Includes Executive Orders – Notices – Proclamations – Determinations – Directives – Reorganization Plans • Does NOT include – Hyperlinks (Jureeka doesn’t work either) – Presidential Homeland Security Directives (PHSD) • Homeland Security Website
- 124. Questions?
- 125. Executive Orders in the Code of Federal Regulations • Published for current year ONLY • Title 3 of CFR • Historically in Federal Register • Collections of Presidential Papers • My favorite site for Executive Orders: http://www.archives.gov/federal- register/executive-orders/ or http://bit.ly/1BsbGa
- 127. Browse & Update
- 128. Browse and Update!
- 129. Most Recent Executive Orders
- 131. Sanctions
- 132. President Reagan’s EOs Revoked
- 133. Highlights • Federal Register – Chronological – Notice & Comment Rulemaking – Preamble, Rule, and Enabling Legislation Cite • Code of Federal Regulations – Topical – Final Rule with Fed. Reg. Cite & Enabling Legislation Cite – NO Preamble – Updated by Federal Register (see List of Sections Affected) • Executive Orders – Title 3 of CFR for 1 year – NARA and Presidential Papers thereafter
- 138. Regulatory Law & Practice • Some Highly Regulated Industries – Securities: Stocks, Bonds, Derivatives • Levels of Regulation: International, Federal, State, Local – Transportation • Airlines (Federal) • Railroads (Federal) • Trucking (State and Federal) • Passenger Vehicles (Local, State & Federal) – Nuclear Power (Federal) – Conventional Power (State) – Medicine • Doctors (State) • Pharmacists (State) • Pharmaceuticals (Federal) • Medical Devices (Federal)
- 139. Sample Regulatory Law Research Plan • Statutes – Delegation of Authority • Regulations aka Agency Rules – Codified in CFR for Federal – Codified as Minnesota Rules for State • Treatises – Subject Matter • Tax, Securities, Telecom, Internet, Firearms, Construction, Products Liability, Pharmaceuticals, Transportation – Minnesota Administrative Procedure (Beck et al.) – Administrative Practice & Procedure (Minn. Practice) • Agency Website • Lobbyists • Relevant Non-Profits • Law Review Articles
- 140. Bloomberg Law
- 141. Bloomberg
- 142. Regulatory Resources
- 144. Bloomberg BNA