Researching Administrative Law: Rulemaking

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Researching Administrative Law Rulemaking

• Administrative LawSpring 2004Professor Mayo

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WHO
WHAT
WHERE
Statutes
U.S. Code
Congress
Code of Federal Regulations
Rules
Agencies
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The United States Code

• Official United States Code
• Updated every 6 years with biennial Supplements
• In between editions consult Public Laws
• Unofficial
• United States Code Annotated (West)
• see also U.S.C.S. (Law. Co-op.)
• Updated annually

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• Compilation of agencies rules
• Culled from Federal Registers
• Not all-inclusive, but a good place to start
• Organized by title, chapter, part, section
• Titles 1 General Provisions to 50 Wildlife
  and Fisheries, excluding Titles 2 6 reserved

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• Research Agenda
• Find the CFR part/section
• Update it from date of CFR publication to today
• Uncover the regulatory history
• 3 ? 1 ?
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• Fed.Reg. CFR
  Fed.Reg.

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1. Getting into the CFR
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Two ways to get into the CFR

• (a) From USC to CFR
• Find a statutory cite
• Start with General Index of U.S.C./U.S.C.A. (key
  words, catch phrases)
• Look up the statutory cite in the CFR Index and
  Finding Aids volumes Parallel Table of
  Authorities and Rules look for it in Table of
  Contents

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Example in the USCA General Index Medicare
criminal penalties 42 U.S.C.A.

• Sec. 1320a-7b. Criminal penalties for acts
  involving Federal health care programs
• (a) Making or causing to be made false statements
  or representations Whoever -
• (1) knowingly and willfully makes or causes to be
  made any false statement or representation of a
  material fact in any application for any benefit
  or payment under a Federal health care program
  (as defined in subsection (f) of this section),
• (2) at any time knowingly and willfully makes or
  causes to be made . . . .

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CFR Index and Finding Aids
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42 CFR
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Two ways to get into the CFR

• (b) Start in the CFR (skip USC)
• Start in the CFR Index and Finding Aids volume
• Use the Index (key words, catch phrases) to find
  section cites
• Historically pathetic index
• recently improved
• still not very reliable

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2. Updating the CFR
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CFRs Biggest Limitation

• Bound volumes updated annually
• Not updated all at once
• Quarterly updates
• Titles 1-16 January 1 (through 31 Dec FR)
• Titles 17-27 April 1 (through 31 Mar FR)
• Titles 28-41 July 1 (through 30 Jun FR)
• Titles 42-50 October 1 (through 30 Sep FR)

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CFRs Biggest Limitation

• Example 42 CFR
• Most recent CFR volumes (as of 3/24/04)
  published October 2003
• Current through September 30, 2003, Federal
  Register
• What about Federal Registers since 9/30/03?

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Updating CFR

• Every rule has to be updated to pick up the most
  recent NPRMs, final rules, notices, etc. from
  Federal Register

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Updating CFR

• Two-step process
• List of Sections Affected LSA in CFR
• cumulative for entire year
• updated monthly
• List of Parts Affected in Federal Register
• cumulative for entire month
• updated daily

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Suppose you were updating 42 CFR Part 1001 on
September 9, 1999

• Start with most recent LSA volume
• Often a delay in getting these into librarys
  holdings and onto the shelf
• Most recent June 1999

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Page cites are to the Federal Register
Proposed Rules (contd)
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The story so far . . .

• Youve found the CFR section(s) you were looking
  for (through September 30, 1998)
• Youve tracked down Federal Register pages that
  affect those CFR sections through the List of
  Sections Affected (October 1, 1998, through June
  30, 1999, or latest available volume of LSA)
• Now you need to update your research for the
  period July 1 to the present (July 20)

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The story so far . . .

• Updating the LSA requires checking the Reader
  Aids section of the Federal Register --
  Cumulative List of CFR Parts Affected
• for every complete month (e.g., July August)
  since the last date covered in LSA (June 30)
  check the list published on the last day of the
  month
• for current (i.e., partial) month, see todays
  issue (or most recent received) for cumulative
  List of Parts Affected

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Again, page references are to the Federal Register
Nothing for 42 CFR this month
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Caution

• All we know so far is that no proposed or final
  rule under Title 42, CFR has been published in
  September 1999
• Remember to repeat this process for July and
  August 1999, as well
• Hint just check the Federal Register for last
  day of the month

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What about agency actions other than rules (final
and proposed)?

• E.g., Notices of other types of agency action
• consent decrees
• initiation of adjudicatory proceeding
• issuance of nonlegislative rules
• some adjudications
• receipt of, or action on, applications for
  licenses, permits, waivers of requirements, etc.

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What about agency actions other than rules (final
and proposed)?

• Track them down in two places
• Federal Register monthly Index
• separate publication
• cumulative for entire year
• Note commercial substitute exists (CIS Federal
  Register Index) -- Underwood receives annual
  edition
• Daily Federal Registers Table of Contents

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3. Looking backward
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Quasi-legislative history of the final rule

• Usually stated in the rule itself
• citation to Federal Register pages where final
  rule was published, as well as amendments
• Then see the actual Federal Register for a
  citation to the NPRM, subsequent amendments to
  the NPRM (if any), and other actions taken

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42 CFR
Important historical information
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Quasi-legislative history of the final rule

• Finding the complete history of all amendments to
  a rule that has been around for a long time is
  very difficult and time-consuming.
• Best idea using a key word or phrase, do a
  search in Lexis or Westlaws Federal Register
  database

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A word about Lexis and WestLaw

• They have databases for Federal Register and Code
  of Federal Regulations
• limited historical materials
• Key words just like case-law or statutory
  research
• Once you find a docket number for rule making,
  make that your search term

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Recap

• 1. Get into the CFR
• start with USC citation, then look it up in CFR
  or
• start with CFRs Index
• 2. Update the CFR
• most recent LSA
• update with List of Parts Affected for all
  subsequent month

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Recap

• 3. Find previous Fed. Reg. notices and
  announcements
• start with Fed. Reg. citations at end of CFR
  section for sources of final rule
• read Preambles (in Fed. Reg. sources) for
  references to previously published material
  (NPRM, amendments to NPRM, earlier final rules,
  etc.)

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Researching Administrative Law on the Web
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Find a good entry point onto the Web

• Portals
• Search engines can be portals, too

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Another useful portal http//faculty.smu.edu/tmay
o/
click here
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click here
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Click here
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Once you are here, scroll down to Administrative
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This will give you quick access to CFR and
Federal Register
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Code of Federal Regulations

• Two WWW sources
• NARA http//www.access.gpo.gov/nara/cfr/cfr-table
  -search.html
• Cornell University (different user interface
  same database) http//cfr.law.cornell.edu/cfr/

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Code of Federal Regulations NARA

• browsable searchable
• includes Parallel Table of Authorities and Rules

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Code of Federal Regulations Cornell

• browsable and searchable
• No access to Parallel Table of Authorities and
  Rules

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Finding the Federal Register

• Its the same process as for the CFR
• Use a portal of your choice
• Click on (or search for) Federal Register
• One provider
• NARA http//www.gpoaccess.gov/fr/index.html

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Click here
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Clicking on Browse Feature (previous screen)
takes you here for todays issue and for
dailies from 1998 to 2003
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The middle of the same page has a modest search
engine that allows you to search by key words, as
well
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Lets try an example entirely on the WWW

• Were going to start with the U. S. Code and look
  for a provision of law that deals with criminal
  penalties for health care fraud
• Then we will find the related regulations in the
  CFR
• Then we will update the related regulations
  through todays Federal Register

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Remember this from Lesson 1? Medicare
criminal penalties 42 U.S.C.A.

• Sec. 1320a-7b. Criminal penalties for acts
  involving Federal health care programs
• (a) Making or causing to be made false statements
  or representations Whoever -
• (1) knowingly and willfully makes or causes to be
  made any false statement or representation of a
  material fact in any application for any benefit
  or payment under a Federal health care program
  (as defined in subsection (f) of this section),

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Finding U.S. Code provisions on the WWW

• Cornell University http//www4.law.cornell.edu/us
  code/
• accessible through one of your portals
• also accessible directly through the Open
  function on your browser (just type or paste in
  the address)
• searchable by key words

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You can do a word search by clicking here
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Type in search medicare AND criminal penalties
here
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Click here
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Note There is a CFR link along the right-hand
margin, which is potentially useful but is
completely unofficial and potentially incomplete.
Use at your own risk.
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Once youve found the USC cite you want, you can
go to the on-line version of CFR
Click here
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Scroll down to the US Code citation you obtained
on the Cornell site
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Opening a CFR section on NARAs site

• HTML no problem
• PDF usually major hassle
• Opening file from NARA site takes so long the
  operation often times out
• Best idea right-click on PDF link and save to
  your hard drive

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Opening a CFR section on NARA in HTML

• go back to the first page of the NARAs CFR site
• scroll down the page to browse the CFR titles
• click on the title you are looking for
• keep following links until you find your title
  part

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For example
Click here
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Scroll down to Title 42. The last update for
Title 42 was in October 2003. Click on it.
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Click on this link
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Click here
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Click on the Text box
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Et voilá!
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What you just did

• You have found a relevant section of the United
  States Code
• You retrieved the US Code text
• You then identified the corresponding rule in the
  CFR
• You then retrieved the text of 42 CFR Part 1001
  as it existed on September 30, 2003
• You now need to bring it up to date

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Updating the CFR main volumes

• Refresher (Step 1)
• List of Sections Affected volume (LSA) CFR
  updates the rule through the end of last month

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Updating the CFR main volumes

• Refresher (Step 2)
• List of Parts Affected table (back of Federal
  Register)
• last issue of every complete month since
  publication date of most recent LSA
• most recent issue of current month

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Start by going to the Federal Register page
through your favorite WWW portal
click here
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Next, you will want to browse the LSA for the
entries, if any, that relate to 42 CFR Part 1001
click here
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Here is the most recent issue of the LSA click
on it
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Now you will need to scroll down the page to find
the links for Title 42
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Heres where you click to see the references to
42 CFR 1001 in the Federal Register through 28
Feb 04
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Scroll down the page until you find a 1001.xxx
section
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If any section in Part 1001 had been altered it
would be here, but its not, so no change
But see Pro-posed Rules
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What do we have, and whats next?

• After finding the statute, you found the rule (42
  CFR Part 1001) through September 30, 2003 (in the
  Oct. 2003 bound volume)
• You have now determined that there have been no
  changes (or proposed changes) to the rule through
  the end of Feb. 2004.
• You now need to update the rule through todays
  Federal Register.

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Back on the Browse the LSA page, there are
links to CFR Parts Affected.
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And it just keeps getting beta and beta

• There is a new, beta (still in testing mode)
  version of the CFR that has rules updated through
  the previous days Federal Register
• Thus, all changes are a single click away.

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http//www.gpoaccess.gov/ecfr/
Here is the beta site as it looked on March 24,
2004
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Finding a Federal Register Notice

• NARA site is searchable for key words
• Try 42 CFR Part 1001 or Medicare penalties or
  some combination
• If looking for pages during the past 8 years, you
  can browse through the NARA issues of Federal
  Register and find the pages through trial and
  error

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Two additional sources

• For old Federal Registers Hein On-line
• http//heinonline.org/FedReg/WelcomePage
• For pending rule making proceedings
• http//www.regulations.gov/

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