Federal Administrative Law Research
I. Administrative Materials
Administrative materials encompass those primary materials emanating from the executive branch of government and its administrative agencies. They consist of agency rules/regulations, agency decisions and adjudications, presidential documents & executive orders, proposed rules, notices (i.e., announcements of procedural requirements and/or agency housekeeping matters), and notices of Sunshine Act meetings.
II. Regulations
A. The first administrative agency, the Interstate Commerce Commission was established in 1887. Agencies grew, because the need for regulation was greater than established units of government could handle due to the administration of new social and economic laws (initially as a result of New Deal legislation). Agencies interpret and apply their governing statutes to create highly detailed rules/regulations which give specific content to statutory intent and provide procedures for implementation and enforcement. They often implement statutory provisions, and judicial opinions often clarify their meaning and/or determine their validity.
B. Publication of Regulations
1. Industrialization and New Deal legislation greatly expanded the amount of agency business, but there was no systematic method of publication. Hundreds of executive orders, thousands of regulations, and tens of thousands of pages of other legal documents were issued with no standard method of publication and hence no access.
2. Two cases concerning New Deal regulations of the oil industry caused pressure for reform. They were based on provisions revoked even before the lawsuits commenced. They proceeded through the courts with no one aware of the regulatory change. Chief Justice Hughes was highly dissatisfied. The furor resulted in the Federal Register Act of 1935.
3. The Federal Register was to be a central repository for publication of federal proclamations, orders, regulations, notices and other documents of general legal applicability to include the following:
a. Presidential proclamations and executive orders
b. Documents the President determines to be of general legal applicability & legal effect.
c. Documents required by Act of Congress to be published.
4. Publication in the Federal Register constitutes constructive notice of its contents to parties affected by a regulation.
5. Publication is analogous to the Statutes at Large and the United States Code. There are two basic formats: one is chronological, and one is topical.
C. Sources
1. Federal Register (FR)
a. Publication of material is in the following order:
Presidential documents/executive orders
Rules/regulations
Proposed rules (including texts and notices of hearings)
Notices (announcements of procedural & agency housekeeping matters)
Notices of Sunshine Act meetings.
b. Arrangement within each section of the FR is by the title of the CFR in which it will eventually appear.
c. Each year constitutes a volume of the FR with continuous pagination throughout the year.
d. Though the texts of final rules appear in the CFR, most other material in the FR never appears elsewhere (i.e., proposed rules, agency policy statements, discussion of comments received, and descriptive statements on agency organization). Therefore it has permanent reference value.
e. Access is through several indexes, tables, and computer databases.
2. Code of Federal Regulations (CFR)
a. Subject arrangement of fifty titles somewhat analogous to the U.S. Code, though they do not always match. Within each title, regulations are arranged by agency, rather than subject. Titles are divided into chapters (each for a particular agency). Chapters are divided into parts, each representing an agency's regs on a particular topic or agency function. Parts are divided into sections, the basic unit of the CFR. Sections are simple presentations of single propositions.
b. Currently the CFR consists of about 200 volumes, which are revised on a quarterly basis.
Titles 1-16 contain regs in force as of January 1.
Titles 17-27 contain regs in force as of April 1.
Titles 28-41 contain regs in force as of July 1.
Titles 42-50 contain regs in force as of October 1.
Therefore a current set will usually contain volumes of at least two different colors, because one year's edition only gradually replaces the previous one.
c. Each part begins with an authority note showing the statutory authority under which the agency promulgated such regs. A Source note follows, showing the citation and date in which the part was last published in the FR in full. This is important, because it is here in the preamble of a rule that a summary and background material may appear.
d. Title 3 = texts of proclamations, executive orders, and other presidential documents. Title 3 of the CFR does not cumulate. Each year contains only the presidential communications from that specific year.
e. The Index and Finding Aids volume is updated each year.
3. Looseleaf Services: most looseleaf services are subject specific. Labor, tax, employment, environment and securities are all highly regulated areas with more than one looseleaf publication. Looseleaf services contain regulations relevant to a topical area, and are often the best place to search for new regulations and administrative decisions.
4. LEXIS and WESTLAW: Both the CFR and the Federal Register are available online. The House of Representatives Law Library on the Web has both the CFR and the Federal Register - http://law.house.gov
III. Finding regulations
A. Indexes : Federal Register
1. Official -- Federal Register Index is published monthly & each month cumulates all previous months of the that year since the January index volume.
- Table of contents by agency name in each issue.
- Finding aids at end of each issue.
- Cumulative list of CFR parts affected during the current month at the end of each issue.
2. Unofficial -- CIS Federal Register Index has been published weekly since 1984. It usually appears within 2 or 3 weeks of the period covered.
B. Indexes : Code of Federal Regulations
1. Official -- The Index and Finding Aids volume provides references to Parts, so indexing is not as specific as it could be. It's "terse" and difficult to use. The idea is that the researcher will then refer to more detailed tables of contents in the individual titles and chapters volumes of the CFR.
2. Unofficial -- CIS provides much more extensive indexing. Index to the Code of Federal Regulations (starts 1981).
C. Table of statutes
A "Parallel Table of Authorities and Rules" in the Index and Finding Aids volume provides access to regulations when one has a citation to either a statute or a presidential document under the authority of which regulations may have been promulgated. It lists every statute or presidential document cited by an agency as authority for its rules.
D. USC, USCA and USCS provide cross references to CFR cites.
E. Online -- CFR is available on both WESTLAW and LEXIS and on the Internet.
F. Looseleaf services usually have detailed indexing systems that enable you to search for regulations and updates from the Federal Register.
IV. Updating Regulations
A. List of Sections Affected (LSA) -- 1st step -- lists FR pages of any new or proposed rules affecting the Code. Coverage reflects back to last revision of each title. Dates covered for each title will vary. NOTE: Because LSA cumulates every month, it is necessary to examine only the most recent pamphlet to find changes since the last CFR revision. (be sure to check the date on the front cover).
B. Federal Register -- 2nd step -- similar list (i.e., List of CFR Parts Affected in January) must be examined in the last FR issue of each month not covered by the LSA.
C. Beyond administrative materials to judicial decisions. Shepard's Code of Federal Regulations Citations -- best source for checking on judicial treatment of rules. It also covers presidential proclamations, executive orders, and reorganization plans.
D. History of regulations
1. Source notes in CFR
2. Preamble in Federal Register
V. Administrative Decisions
A. Agency Decisions
1. Official Publications
Published by the Government Printing office. Not always timely or well-indexed, but often the only source available. Many are now also available online.
2. Unofficial Publications
Commercial, looseleaf services, WESTLAW and LEXIS
B. Judicial Review of Agency Decisions
1. West's Digest System-- by topic and key number.
2. Shepards
3. Looseleaf Services
4. WESTLAW and LEXIS
Return to Guides and Help Sheets Index
