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Administrative Law: Outline of Administrative Law Research

Research / APA Outline

Administrative Law Research

  1. The Mechanics of Federal Rulemaking
    1. Administrative Procedure Act (5 USC 551 et seq), outlines the rulemaking process for federal agencies. The APA requires:
      1. Notice of a proposed rule
      2. Opportunity for public comment
      3. Reason and authority for the rule
      4. Steps are:
        1. Notice of Proposed Rulemaking - usually provides:
          1. History of prior rulemaking
          2. Explanation and justification for the rule
          3. Proposed language
          4. Information about the comment period
        2. Comment Period - during which the agency will accept comments from the public
        3. Notice of Adoption - usually provides:
          1. History of prior rulemaking (including the NPRM)
          2. Summary of comments received
          3. Description of changes (if any) made in response to comments
          4. Final rule text
          5. Effective date
    2. Federal Register, APA-mandated rulemaking notices (NPRM and Notice of Adoption) are published in the Federal Register, a daily collection of executive agency actions.
      1. The Federal Register is available at:
        1. Federalregister.gov – maintained by NARA and the GPO. Simple search and advanced (but not that advanced) search. The only place to get the official pdf version of the FR.
        2. HeinOnline – offers searchable library back to issue 1 and the yearly Federal Register Index back to 1936
        3. Westlaw – offers more sophisticated searching back to issue 1 in 1936
        4. Lexis – offers more sophisticated searching back to issue 1 in 1936
    3. Comments - Regulations.Gov is the clearinghouse for the “eRulemaking” initiative - a place to submit and read comments on proposed rules. Many agencies do not use this service. Nonparticipating agencies may still make comments available on regulations.gov. Comments are not published in the Federal Register.
  2. The Code of Federal Regulations
    1. Federal regulations are codified into the Code of Federal Regulations, or CFR. Like the United States Code, the CFR is organized into Titles, but the numbering of the titles is different from the USC.
      1. Nothing but Rules! The CFR contains only rules. It does have any of the helpful prefatory material found in Federal Register rulemaking releases.
      2.  Currency, like the USC, the CFR is a point-in-time version of the law and every version provides information about its currency.
      3. Annotations, with varying levels of detail, every version of the CFR points to at least the most recent adopting release amending the section.
      4. CFR is available:
        1. Westlaw
        2. Lexis
        3. eCFR 
        4. all three have currency date and annotation to the most recent amendment. Lexis and Westlaw have more comprehensive amendment history, case and statutory annotation links (Lexis - "Shepardize this document"), and better search.
        5. Lexis and Westlaw also have indexes.
  3. Navigating between sources
    1. USC & CFR
      1. CFR annotations ("Authority" LX & WL) > USC
      2. USC "Research References & Practice Aids" in LX, "Citing References > Regulations" in WL CFR
    2. Federal Register & CFR
      1. CFR annotations "Credits" in WL, "History" in LX) Adopting release
      2. Adopting release "List of Subjects" or rule text  CFR
    3. Within the Federal Register
      1. Adopting release "Background" or "History" Proposing Release(s)
  4. States
    1. State administrative rulemaking is generally similar, but with less memorialization of the rulemaking process.
    2. Massachusetts, for example, has its own Administrative Procedure Act (GL c 30A).
      1. Register, The Massachusetts version of the Federal Register, the Massachusetts Register, is published every two weeks. It is available on Lexis and in the law library.
      2. Codification, Massachusetts regulations are codified in Code of Massachusetts Regulations (CMR), also available in Lexis and Westlaw and in the law library. The CMR is arranged by agency (this is typical of state regulatory codes)