Living La Vida ’Lectric

Regulation, Law & Policyin the 21st Century

Neal R. AxtonInformation Resources

Lexis Classic Returns!

Law Reviews & Journals

Segment Searching in WMLR

Court Cases – Segment Searching

Administrative Law on Lexis Classic

Segment Searching – aka Metadata Search

Metadata Revisited

Regulatory Law & Practice• Some Highly Regulated Industries

– Securities: Stocks, Bonds, Derivatives • Levels of Regulation: International, Federal, State, Local

– Transportation• Airlines (Federal)• Railroads (Federal)• Trucking (State and Federal)• Passenger Vehicles (Local, State & Federal)

– Nuclear Power (Federal) – Conventional Power (State)– Medicine

• Doctors (State)• Pharmacists (State)• Pharmaceuticals (Federal)• Medical Devices (Federal)

Research Planning• CFR

– Hard Copy CFR– FDsys CFR– CFR on West/Lexis/Bloomberg

• Annotations?– eCFR

• Federal Register– Hard Copy Federal Register– FDsys Federal Register– Federal Register on West/Lexis/Bloomberg– Regulations.gov

Research Paradigms Revisited• 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 (eg US Code )

– Codification becomes Regulation (eg Federal Register & CFR)

– How Law is Enforced (Executive Branch)

– How Law is Litigated • Judges –Administrative Law Judges (ALJ)

– How Law is Changed

Cyclical Nature of Law

Legislation &

Codification

Presidential Signing or Veto

Regulation &

EnforcementInterpretation &

Gap Filling

Cyclical Nature of Law

Legislation &

Codification

Approval or Veto

Regulation &

EnforcementInterpretation &

Gap Filling

Codification

• The process of formalizing and numbering a body of law

• Napoleonic Code• Justinian Code• National Fire Code• Uniform Commercial Code• Minnesota’s UCC @ Chapter 336

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

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)

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

Informal Rule-making Process• Advanced Notice of Proposed

Rulemaking • Notice of Proposed Rulemaking• Comment Period• Final Rule• Variations on a theme• Interim & Emergency Rules

Informal Rule-making Process• Advanced Notice of Proposed

Rulemaking • Notice of Proposed Rulemaking• Comment Period• Final Rule• Variations on a theme• Interim & Emergency Rules

Delegation of Authority• Congress – Plenary Power–Delegates some power to Agency via Statute–Agency may not exceed its authority

–Two potential problems• Agency does NOT use authority, ignores

Congressional mandate• Agency exceeds its mandate• Agency must assess scope of that power

and move to implement

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• Arlington, Texas v. FCC, ___ US ___, __ S. Ct. ___ 2013 WL

2149789 (May 20, 2013).

• Dispute over location of cell phone towers and municipal obstruction

• Does Agency have power to decide if its delegation of authority includes power to regulate municipalities?

• Cf. Necessary and Proper Clause, Art. 1, sec. 8, cl. 18

• 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

Regulations.Gov

Screen Captured 06/03/2013

Power Searching

Scrolling down

theAdvanced

SearchScreen

A Slight Detour• Federal Law–Statutes = US Code–Regulations = CFR

• State Law–Statutes = Minnesota Statutes–Regulations = Minnesota Rules

• Rules = Agency Rules in context

Jurisdiction• United Nations• Foreign• Federal• State• Tribal• County• Municipal Corporation aka City• Quasi-Municipal Corporation

http://www.lawlibrary.state.mn.us/rules.html

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

Notice of Proposed Rulemaking• Fancy Name for 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

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

Emergency Powers• Topical Research: Causeway Cannibal & Illegal Drugs

http://bit.ly/N

Zjd1D

Final Link = Earliest Document

Each entry has its own docket

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

Inter-Agency Correspondence

Recap

• Notice of Intent– Summary –Preamble– Cite to Enabling Legislation– Amendment to CFR

• Next: Notice of Guidance Availability

Guidance• Delegation of Authority

– Rule-Making or Regulation Promulgation – e.g. Emergency Rooms treat uninsured

– Policy – Uninsured treated based on seriousness of injury (triage)

– Procedures– EMTs do intial 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

Today’s Take-Aways• Federal Register

– Chronological – Newspaper of Federal Government– Emergency Regulations & Interim Regulations– Notice & Comment Rulemaking– Preamble, Proposed Rule, and Enabling Legislation Cite– Preamble, Final Rule, and Enabling Legislation Cite

• Code of Federal Regulations (CFR)– Topical Organization aka Codification– Includes ONLY Final Rules– NO Preamble– Cites back to and Updated by Federal Register

• Executive Orders– President Makes Law by Signing Order

Advanced Topic:

Tracking Laws from Enabling Act through Regulation Promulgation

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• 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

To start 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

Neal’s Default Research Plan• Primary Law– Statutes–Regulations–Case Law

• Legal Commentary / Secondary Sources• Constitutional Law

• Jurisdiction Overlay: Intl, Federal, State, Local

Alphabetical

Dodd-Frank

Title 12

Title 42 of the CFR?

More small text…

Color coding illustrates titles affected• End of the popular name table entry for Dodd-Frank Act

Title 7 of U.S.C. – Agriculture

Title 12 of U.S.C. – Banks and Banking

Title 15 Commerce and Trade

Title 18 Crimes & Criminal Procedure

Title 22 Foreign Relations and Intercourse

Title 31 Money & Finance

Title 42 Public Health and Welfare

Worth adding to your research log!

• Public Law 111-203• 203rd law passed by 111th Congress• July 21, 2010–Date signed by President typically

• 124 Stat. 1376• Volume 124• Statutes at Large• Page 1376

Table of Parallel Authorities• 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

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

Browse & Update

Browse and Update!

Most Recent Executive Orders

Slightly Older Executive

Orders

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

Media & Communications

Regulatory Law & Practice• Some Highly Regulated Industries

– Securities: Stocks, Bonds, Derivatives • Levels of Regulation: International, Federal, State, Local

– Transportation• Airlines (Federal)• Railroads (Federal)• Trucking (State and Federal)• Passenger Vehicles (Local, State & Federal)

– Nuclear Power (Federal) – Conventional Power (State)– Medicine

• Doctors (State)• Pharmacists (State)• Pharmaceuticals (Federal)• Medical Devices (Federal)

Sample Regulatory Law Research Plan• Statutes

– Delegation of Authority• Regulations aka Agency Rules

– Codified in CFR for Federal– Codified as Minnesota Rules for State

• Treatises– Subject Matter

• Tax, Securities, Telecom, Internet, Firearms, Construction, Products Liability, Pharmaceuticals, Transportation

– Minnesota Administrative Procedure (Beck et al.)– Administrative Practice & Procedure (Minn. Practice)

• Agency Website• Lobbyists• Relevant Non-Profits• Law Review Articles

Bloomberg Law

Bloomberg

Regulatory Resources

Bloomberg BNA