regulation, law & policy in the 21st century from october, 2014

Advanced Legal Research

Regulation, Law & Policyin the 21st Century

Neal R. AxtonInformation Resources

Fall, 2014

Starting Points• Topical Research

– West Virginia & Water Pollution Law

• Regulatory Research– Evolution of Social Security Regulations due to Assisted

Reproductive Technology • Freezing Embryos & Post-Humous Children• Retirees with Newborn Babies

• Practice-Oriented Research– Real Estate Purchase for Brownfield Re-Development

– Possible Superfund Exposure from :• Underground Storage Tanks (UST)• Pollution of Water Supply & Soil• Fact Research and Engineering Analysis

Regulatory Law & PracticeSample Highly Regulated Industries

– Securities: Stocks, Bonds, Derivatives

– Transportation: Airlines, Railroads, Trucking, Passenger Vehicles

– Power: Nuclear, Conventional, Solar & Wind Power

– Medicine:• Doctors, Dentists, Nurses, EMTs & Pharmacists • Pharmaceuticals & Medical Devices• Medical Supplies, Medical Waste & Decontamination

– Construction: Building Codes, Electrical, Natural Gas, Fire Safety

– Food Safety: Pesticides, Herbicides, Drainage, Insurance, Zoning

Research Paradigms• Vendor Paradigm–West– Lexis– Fastcase–Versuslaw– Loislaw–Google Scholar–Wikipedia

• Data Silos

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

Legal Process Paradigm

– How Law is Drafted & how Bill becomes a Law

– How Law is Codified (e.g. US Code, CFR )

– Law becomes Agency Regulation (e.g. Clean Water Act, Homeland Security Act)

– How Law is Enforced (Executive Branch)

– How Law is Litigated •Judges –Administrative Law Judges (ALJ)

– How Law is Changed

Codification

• The process of formalizing and numbering a body of law

• Napoleonic Code• National Fire Code• Minneapolis Building Code• Uniform Commercial Code• Minnesota’s UCC @ Chapter 336

Cyclical Nature of LawCongress

Legislation &Codification

Executive (President)

Veto or Sign Bills

Executive (Agencies)

Regulation & Enforcement

Judiciary

Interpretation& Equitable Remedies

Cyclical Nature of LawCongress

Public Laws & Delegation of

Authority

Executive (President)

Executive Orders

Executive (Agencies)

InformalRule-Making:

Federal Register & CFR

Judiciary

Injunctions& Orders

Default Research PlanPrimary Law (by Jurisdiction)

• Statutes• Regulations• Executive Orders• Case Law– Shepardize or Keycite

Secondary Law or Legal Commentary

• Nutshells• Treatises• Practice-Oriented Materials

Cyclical Nature of LawCongress

Legislation &Codification

Executive (President)

Executive Orders

Executive (Agencies)

Regulation & Enforcement

Judiciary

Injunctions& Invalidation

Cyclical Nature of LawCongress

Legislation &Codification

Executive (President)

Executive Orders

Executive (Agencies)

InformalRule-Making:

Federal Register & CFR

Judiciary

Injunctions& Invalidation

Compare and Contrast

Statutes•Public Laws – Chronological•U.S. Code – Topical

Rules aka Regulations•Federal Register – Chronological•Code of Federal Reg.’s – Topical

Most Basic Overview ofInformal Rule-making Process

•Proposed Rule•Comment Period• Final Rule

•Codification

Federal Rule-Making Terminology

• Advanced Notice of Proposed Rulemaking • Notice of Proposed Rulemaking• Comment Period• Final Rule• Variations on a theme• Interim & Emergency Rules

Legal Process Paradigm of Research:

Tracking Laws from Enabling Act through Promulgation of Regulations

Power SharingCongress

Legislation &Codification

Delegation of Authority

Executive (Agencies)

Regulation & Enforcement

Nuclear Regulatory Commission

Governing Legislation

Atomic Energy Act of 1954

Public Law 83-703

Say what mean, mean what you say• [Original] 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

Wikipedia as a starting place

Popular Name Table

Popular Name Table

The AEA

Public Law -> Codification

Sections 28-61

Sections 231-274

Sections 320 - 1805

Title 42 of the U.S. Code

Atomic Energy Act

• Governs the Nuclear Regulatory Commission (NRC)• NRC has rule-making power• Where are those rules found in

the CFR?

Parallel Table of Authorities and Rules

Quarterly Update – 41 Titles of 50

For current law, use eCFR

http://www.ecfr.gov

For Historical CFR Research, use Hein

Questions?

Table of Parallel Authorities & Rules• 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

http://www.gpo.gov/help/parallel_table.pdf

Text Version

2011 PTAR

Statutes At Large Section

Then Public Laws & Executive Orders

Questions about PTAR?

For AEA, find top of title 42 of the U.S.C.

Looking for 42 USC 2011 et seq.

CFR Titles

• Atomic Energy Act is primarily codified in the CFR at:

• Most Title 10, multiple parts

• Title40 parts 191, 192 and 194

Title 10, part 20

10 CFR Part 100

The Easy Button

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

Questions?

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)

Potential Problems• Agency does NOT use authority, ignores

Congressional mandate– Clean Water Act & TMDL– Regulation of Deep Sea Drilling – ATF inspections of Firearms Dealers– Cf. Citizen Enforcement

–Agency exceeds its mandate• Agency must assess scope of that power

and move to implement

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

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.

Arlington v. FCC• City of Arlington, Tex. v. F.C.C., 133 S.Ct. 1863 (2013).

• Dispute over municipal resistance to cell tower location

• FCC declared 90 days was a presumptively reasonable amount of time to respond to cell tower siting applications. Court found 90 day rule was entitled to Chevron deference.  

• 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).

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

http://bit.ly/qMYiM

Old School & New School• Federal Register– Hard Copy Federal Register– FDsys Federal Register– Federal Register on West/Lexis/Bloomberg– Regulations.gov

• CFR– Hard Copy CFR– FDsys CFR– CFR on West/Lexis/Bloomberg• Annotations?

– eCFR

Citing Online Resources – BB Rule 18

Regulations.Gov

Regulations.Gov

Screen Captured 10/09/2014

How to Write Better Comments

http://www.regulations.gov/docs/Tips_For_Submitting_Effective_Comments.pdf

Advanced Search Goodness!

Scrolling down

theAdvanced

SearchScreen

Questions?

Jurisdiction• United Nations• Foreign• Federal• State• Tribal• County• Municipal Corporation aka City• Quasi-Municipal Corporation

Informal Rule-making Process• Advanced Notice of Proposed

Rulemaking • Notice of Proposed Rulemaking• Comment Period• Final Rule• Variations on a theme• Interim & Emergency Rules

Nota Bene:

Notice of Proposed Rulemaking

is just

a fancy name for a Proposed Rule

Metadata of NPRM

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

Citation?

Rule 14 – Administrative Materials• Rule 14.2(a) – Final Rules• Rule 14.2(b) – Proposed Rules

Parallel Citation?

Passenger Screening Using Advanced Imaging Technology, 78 Fed. Reg. 18287 (NPRM March 26, 2013)(to be codified at 49 C.F.R. pt. 1540).

Passenger Screening Using Advanced Imaging Technology, 78 Fed. Reg. 18287 (NPRM March 26, 2013)(to be codified at 49 C.F.R. pt. 1540) available at http://www.gpo.gov/fdsys/pkg/FR-2013-03-26/pdf/2013-07023.pdf.

Passenger Screening Using Advanced Imaging Technology, 78 Fed. Reg. 18287 (NPRM March 26, 2013)(to be codified at 49 C.F.R. pt. 1540) available at http://1.usa.gov/1CZ8PfX.

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

Did NPRM a final rule?

Did it become law?

• How do we find out?

Metadata!

• RIN 1652–AA67

–Regulation Identification Number

• Docket No. TSA–2013–0004

Footnote 36

Footnote 54

Questions?

Public Health Regulations• Topical Research: Causeway Cannibal & Illegal Drugs

http://bit.ly/N

Zjd1D

Informal Rule-making Process• Advanced Notice of Proposed

Rulemaking • Notice of Proposed Rulemaking• Comment Period• Final Rule• Variations on a theme• Interim & Emergency Rules

Each entry has its own docket

2011 Temporary Order

Docket Folder

4 page notice

Very End of DEA Notice

Changing 3 lines in U.S. Code

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

Guidance• Delegation of Authority from Agencies to States & Cities

– Rule-Making or Regulation Promulgation – e.g. Emergency Rooms MUST treat uninsured

– Hospital Policy – Uninsured treated based on seriousness of injury (triage)

– Work Procedures– EMTs do initial 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

Anthrax Release Guidance

Comments on Anthrax Release Guidance

Questions?

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

Search for Ebola

Zero, Zilch, Nada

Search for Quarantine

No results!

Quarantinable?

Yes!

Scroll Down to E.O. 13375

Another Method: Browse & Update

Amendment of E.O. 13295

Revised List

Viral Hemorrhagic Fevers

Browse and Update!

Most Recent Executive Orders

More2014

Executive Orders

Punishing Putin

Syrian Sanctions

President Reagan’s EOs Revoked

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