3.4 Researching Regulations and Administrative Materials

Regulations and administrative materials play a crucial role in implementing laws. They flesh out statutory frameworks, providing detailed rules and guidance for agencies and the public. Understanding how to research and interpret these materials is essential for navigating the complex world of administrative law.

This section covers the rulemaking process, key sources of administrative law, and how to interpret agency materials. It also delves into the authority and enforceability of regulations, judicial review of agency actions, and legislative oversight. These topics are vital for grasping the full scope of statutory research.

Rulemaking Process and Sources

Administrative Procedure Act (APA) and Rulemaking Process

• The Administrative Procedure Act (APA) governs the rulemaking process for federal agencies
• Agencies must provide notice of proposed rules and allow for public comment periods before finalizing rules
• The notice and comment process ensures transparency and public participation in the rulemaking process
• After considering public comments, agencies may modify proposed rules before issuing final rules

Key Sources of Administrative Law

• The Code of Federal Regulations (CFR) contains the codification of general and permanent agency rules
• The CFR is organized by subject matter into 50 titles, with each title divided into chapters, parts, and sections
• The Federal Register publishes proposed rules, final rules, executive orders, and other agency notices on a daily basis
• The Federal Register is indexed by agency and subject matter to facilitate research
• Presidential executive orders and memoranda can direct agencies to take specific regulatory actions or establish policies for the executive branch (Executive Order 13771 on reducing regulation)
• Agencies often issue guidance documents, such as interpretive rules, policy statements, and enforcement manuals, to clarify their interpretation of regulations and statutes (FDA guidance on food labeling)

Interpreting Administrative Materials

Locating and Accessing Agency Materials

• Agency websites often provide access to current and proposed regulations, guidance documents, and adjudicative decisions
• Adjudicative decisions, such as those issued by administrative law judges or agency appeal boards, can provide insight into how an agency interprets and applies its regulations in specific cases (NLRB decisions on unfair labor practices)
• Researchers can use commercial databases (Westlaw, LexisNexis) or government databases (Regulations.gov) to locate agency materials
• Freedom of Information Act (FOIA) requests can be used to obtain agency records not publicly available

Interpreting Agency Rules and Guidance

• When interpreting agency rules and guidance, consider the plain meaning of the text, the agency's intent and purpose, and any relevant judicial interpretations
• The preamble to a final rule, published in the Federal Register, can provide insight into the agency's reasoning and response to public comments
• Guidance documents, while not legally binding, can be persuasive and are often relied upon by agencies in enforcement actions and adjudications (EPA guidance on Clean Water Act jurisdiction)
• Canons of statutory construction, such as the rule against surplusage and the canon of constitutional avoidance, can aid in interpreting agency regulations
• Consulting secondary sources, such as treatises and law review articles, can provide additional context and analysis of agency rules and guidance

Authority and Enforceability of Regulations

Statutory Authority and Judicial Deference

• Regulations must be authorized by and consistent with the agency's enabling statute, which grants the agency its rulemaking authority
• Courts generally defer to an agency's interpretation of its own regulations under the Auer deference doctrine, unless the interpretation is plainly erroneous or inconsistent with the regulation
• The Chevron deference doctrine applies when courts review an agency's interpretation of an ambiguous statute, deferring to the agency's interpretation if it is reasonable
• Challenges to agency actions can be based on claims that the agency exceeded its statutory authority, failed to follow required procedures, or acted arbitrarily and capriciously

Enforceability and Legal Effect of Agency Materials

• Final rules published in the Code of Federal Regulations have the force and effect of law and are binding on regulated parties
• Guidance documents, while not legally binding, can be persuasive and are often relied upon by agencies in enforcement actions and adjudications
• Agencies may use guidance documents to clarify regulatory requirements, provide examples of compliance, or announce enforcement priorities (OSHA guidance on workplace safety during COVID-19)
• Regulated parties may challenge agency guidance as a final agency action subject to judicial review if it has a significant impact on their rights and obligations
• Failure to comply with agency regulations can result in civil or criminal penalties, as well as administrative sanctions (revocation of permits or licenses)

Agency Actions vs Judicial and Legislative Oversight

Judicial Review of Agency Actions

• Judicial review of agency actions is governed by the Administrative Procedure Act (APA) and can involve challenges to the procedural and substantive validity of regulations and adjudicative decisions
• Courts review agency actions under the "arbitrary and capricious" standard, examining whether the agency considered relevant factors and provided a reasoned explanation for its decision
• Plaintiffs may challenge agency actions in federal district courts or, in some cases, directly in federal courts of appeals (Clean Air Act cases in D.C. Circuit)
• Successful challenges to agency actions can result in the court vacating the action, remanding to the agency for further proceedings, or issuing injunctive relief

Legislative Oversight and Control

• Congress exercises oversight over agencies through committee hearings, investigations, and the appropriations process
• Congressional committees can subpoena agency officials to testify and produce documents related to agency activities (House Oversight Committee investigations)
• Congress can pass legislation to overturn or modify agency actions, such as disapproving a rule under the Congressional Review Act
• The Congressional Review Act allows Congress to disapprove of recently promulgated agency rules through a joint resolution of disapproval, subject to presidential veto
• Congress can also use the appropriations process to restrict agency funding for specific regulatory activities or programs (rider prohibiting EPA regulation of greenhouse gases)

Balancing Agency Priorities and External Pressures

• Agencies must balance their statutory mandates, policy goals, and political pressures when making regulatory decisions
• Agencies often face competing demands from regulated industries, public interest groups, and other stakeholders when developing and implementing regulations
• Changes in presidential administrations can lead to shifts in agency priorities and regulatory approaches (Obama-era Clean Power Plan vs. Trump-era Affordable Clean Energy Rule)
• Agencies must anticipate potential judicial and legislative challenges when crafting regulations and must be prepared to defend their actions in court and before Congress
• Effective agency decision-making requires careful consideration of legal authorities, policy objectives, and potential impacts on regulated parties and the public