regulation, law & policy in the 21st century from october, 2014
DESCRIPTION
Slides to accompany my presentation on Federal Administrative Legal Research.TRANSCRIPT
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