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LIS 530 GLE: Legal Resources: Week 5: Regulatory Mat'ls

Adapted from the LibGuide for LAW 627, the 1L course in legal research, this guide is intended for students enrolled in LIS 530 GLE, Legal Resources. It has been edited for course length as well as scope/audience.

Read/Watch:

Before class, you should:

  • watch the "Congressional Delegation" video
  • watch the "Bureaucracy Basics" video
  • watch the "Types of Bureaucracies" video
  • watch the "Controlling Bureaucracies" video

Definitions

Administrative Procedures Act (APA)
Federal statute governing the process agencies must follow to make regulations. Pub.L. 79–404, 60 Stat. 237, enacted June 11, 1946.

Code of Federal Regulations (CFR)
Official publication and source of Federal regulations that are general/permanent. Divided into 50 numbered "Titles," each of which represents a subject of regulation.

Enabling Legislation, or Organic Statute
The Federal (Congressional) statute that gives an agency authority to promulgate regulations. An authority statement accompanies every regulation or group of regulations. Look to the beginning of the Suppart, Part, or Subchapter, if you don't find one listed at the end of the regulation itself. 

FDsys
Abbreviation for Federal Digital System, the online access to the U.S. government's publications. Run by the Government Publishing Office (GPO), FDsys is the system used both by Government offices to produce documents, and by the public to gain access to these documents.  More information here

Federal Register (FR or Fed. Reg.)
Official publication of the executive branch of the Federal government. Official source for Federal rulemaking, including notices of proposed rulemaking and final rules, and Executive Orders. Published by GPO, under the direction of the Office of the Federal Register at NARA.

Notice of Proposed Rulemaking (NPR)
Required by the APA, this notifies the public and other governmental bodies that the agency intends to promulgate a new regulation. 

Promulgate
To promote or put into effect, this is the verb applied to the action of creating a new rule or regulation (laws are enacted or passed; rules are promulgated).

Rule/Regulation
These are equivalent terms for a body of law created by the Federal agencies, to comply with Congressional directives (i.e., the enabling legislation). 

Free Sources of the Law

In any regulatory problem, a host of additional resources may be available to you in the form of:

  • Agency websites, with guidance documents or handbooks, in addition to the regulations
  • Industry websites, with fact sheets and advice
  • "Looseleaf services" in print or online form, with practice advice and support organized by regulation numbers

Regulations.gov - Source for tracking rules through the regulatory process, including digital files of public comments.

FDsys - Code of Federal Regulations (2014) - Browse and view or download by Part or Chapter.  Food and Drug regulations are in Title 21. 

e-CFR - GPO-produced but not official version of the CFR that incorporates changes into the text on an ongoing basis. 

FDsys - Federal Register - Browse and view or download by day or page range. Published every business day, reporting on proposed and final rules from Federal agencies, as well as Executive Orders from the office of POTUS.

Understanding Regulations

Regulations, also known as rules, are made by agencies (FCC, EPA, etc.) in accordance with an enabling statute passed by Congress.  Congress passes a law outlining an area broadly, and the agency is charged with implementing the legislation by making specific rules and enforcing any violations. 

Regulations are published in the Federal Register when they're at the draft "proposed" stage, and again when they're final. The Administrative Procedure Act requires that agencies publicize a proposed rule and allow time for the public to comment before making it final. Publication in the Federal Register satisfies this "notice and comment" requirement.

Final regulations are assembled into a subject-based code, which is used to see what the current regulations are on a given industry or topic. This is the Code of Federal Regulations, and the subject divisions are called Titles (like the U.S. Code). 

Crash Course!!

Important takeaways:  

  1. We're talking about a shift of power from the Legislative branch to the Executive branch. The Constitution names the Legislative branch as the lawmaking branch, and Congress is delegating some of that power. 
  2. It's generally considered necessary because it would be extremely difficult for Congress to administer all the programs it creates through legislation, not to mention to write all the detailed sets of rules for their administration. 
  3. It's also been viewed as a way of avoiding political responsibility for the day-to-day actions of carrying out programs.

Takeaways: 

  1. Bureaucratic (agency) functions create separation of powers issues:  making and enforcing their own rules (quasi-legislative), and settling disputes through administrative adjudication (quasi-judicial).
  2. In some ways, agency rulemaking is more democratic than congressional lawmaking -- required to read and respond to public comments before issuing final rule.
  3. Bureaucracy is useful because they perform functions others don't want to do (like inspect meat), and they provide more stability than Congress (bc House could turn over every 2 yrs).
  4. Remember that most day-to-day contact with bureaucrats is with *State govenrment*, not Federal. 

 

Agencies by Type:

  1. Cabinet-level or Executive Departments (e.g., Dept. of Justice)
  2. Independent Agencies (most requiring Senate Confirmation for head)
  3. Independent Regulatory Commissions
  4. Government Corporations (e.g., Amtrak and Postal Service)

Agencies by Function:

  1. Client Service (e.g., FDA)
  2. Maintenance of Union (e.g., IRS, Justice)
  3. Regulation of Economic Activity (e.g., FCC)
  4. Welfare/Benefits (e.g., Social Security)

OBJECTIVES / SELF-TEST

To make best use of this unit, please read the information in all boxes, referring to the definitions box as necessary.

At the end of this lesson, you should be able to:

  • Explain, in your own words, the role of administrative agencies in lawmaking
  • Articulate the difference between a regulation and a statute.
  • Explain the source of authority of regulations.
  • Provide an example of an agency and the area it regulates