Although administrative materials can seem somewhat intimidating, familiarity with them is essential to the expert legal researcher. If you work or practice in a highly regulated area of law such as environmental, tax, health, business, or securities law, you may find that you spend much more time dealing with administrative agency materials than you do with statutes or case law.
Administrative law is law made by executive branch agencies or independent administrative agencies. At least in theory, agencies can call upon specialized expertise from staff and regulated constituencies to fashion solutions to complex social, economic, or other problems that are difficult for a legislative body to effectively address. Administrative law exists at both federal and state levels, as well as at the local (county or municipal) level; thorough research often requires exploring administrative materials at each jurisdictional level.
Administrative agencies have different types of law making powers, often described as falling into three categories:
An agency’s exercise of each of these law-making powers may result in documents to be discovered by the legal researcher. Generally these documents are considered to be primary legal authorities, just as statutes and cases are.
The United States Government Manual, which is available in print or in electronic format on the FdSys web site (http://www.gpo.gov/fdsys/). The Manual covers both executive branch agencies and independent agencies. It is a good source of background information on a federal agency’s powers, activities, and the types of documents it issues. In this source you may discover the popular names and citations for important statutes, as well as information about an agency’s procedures. A pdf version of the U.S. Government Manual is also available on Hein Online.
Another very useful source for background on federal agencies is the Federal Regulatory Directory (“FRED”.) Currently the Federal Regulatory Directory is available only as a print publication (TMLL Reference Stacks KF5407.C6). FRED supplies in-depth information about how each agency operates and what publications result from its activities.
Topical legal research guides, easily found on the Web by Googling the name of the topic (e.g.,” food and drug law” and the words “legal research guide”) are also very helpful in understanding the role of agencies and the sources where their publications can be located. Treatises and law review articles may also be useful. Leah Chanin’s treatise “Specialized Legal Research” (TMLL Reference Stacks KF240.S64) is a good source for some subject areas.
Many states have publications similar to the U.S. Government Manual, such as the Maryland Manual, http://msa.maryland.gov/msa/mdmanual/html/mmtoc.html, which provide information about state level administrative agencies.
Agency lawmaking power is grounded in what is known as “enabling legislation.” This term refers to legislative enactments that create an agency and empower it to promulgate regulations on topics within its mandated area of authority. The enabling statute also empowers other agency activity such as investigation or enforcement. The enabling statute must be part of administrative research for several reasons. First, the statutory language determines the scope of the agency’s authority and provides the backdrop for interpreting the regulations. Further, regulations that arguably exceed the scope of the authorizing legislation may be challenged by affected parties and be held invalid by courts. Because of this, it’s been said that the three rules of administrative research are “First, look to the (enabling) statute; then, look to the statute; third, look to the statute.” Finally, from a research standpoint, published versions of the codified enabling statute may provide cross-references to specific regulations promulgated pursuant to its authority.
The federal Administrative Procedure Act (APA) (5 U.S.C. § 551 et seq.) divides agency activity into two basic categories: rulemaking or adjudication. The APA sets forth a number of procedural requirements that apply to both executive and independent agencies.
Most states, including Maryland, have an Administrative Procedure Act, which establishes some agency procedures for rulemaking and adjudications. Some of these state APAs borrow from the original (1981) or revised (2010) Model State Administrative Procedure Act, which were drafted by the National Conference of Commissioners on Uniform State Laws.
For any given agency, APA requirements are only part of the picture; the enabling statute and internal rules may prescribe other procedures.
Although agencies may have also internal procedural rules, the term “rule” is often used synonymously with “regulation”, and “rulemaking” means promulgation of regulations. Regulations resemble statutes, but are promulgated by agencies, not by legislative bodies.
The federal and state APAs spell out some of the rulemaking procedures that agencies must follow in promulgating regulations. Many agency regulations are considered “legislative rules” that are subject to the APA's “notice and comment” requirements, which include publication of proposed new or amended regulations; provision of an opportunity for public comment; and publication of final adopted versions of regulations.
Agencies often also promulgate “non-legislative” rules, such as guidance documents, interpretive rules, or policy statements. These rules currently are not subject to APA requirements of notice and comment, but often are published in the Federal Register or its state counterpart, such as the Maryland Register. For detailed information on this topic, an excellent source is Mary Whisner, Some Guidance about Federal Agencies and Guidance, 105 Law Libr. J. 385 (2013).
Two additional aspects of administrative research are agency adjudications, where the agency itself issues rulings and decisions; and cases where courts have reviewed challenges to agency regulations, rulings, and other actions.
Administrative agency decisions resemble case law, but emanate from agencies, not from courts. Agency decisions arise out of the agency’s quasi-judicial powers. Most agencies have the authority to adjudicate issues arising under applicable statutes and regulations. An agency may issue rulings on specific inquiries submitted to it, and may also conduct fact-finding and formal hearings as part of enforcement or other proceedings.
There are many types of agency decisions, e.g., declaratory orders, consent decisions, or APA formal or informal opinions. Other types of decisions are specific to a particular agency, such as SEC No-action letters or IRS Letter Rulings. Many agency hearings are conducted by administrative law judges (ALJs). The CALI Lesson "Agency Decisions and Orders" has a more detailed explanation of this topic.
Agency rulings and decisions can be located in a number of sources (see below under “Federal Administrative Materials” and “State and Local Administrative Materials”).
Just as for court cases, a researcher needs to validate the precedential value of agency decisions. Although the APA requires federal agencies to publish final decisions, agencies are not generally strictly bound by their prior decisions under stare decisis in the same way that courts are, possibly because agencies need more flexibility to respond to changing conditions. However, it’s often necessary to see whether a particular agency decision is still being followed. To do this, you can use Shepard’s on Lexis or Key Cite on Westlaw to validate some agency decisions. Using this method, you can also locate later decisions that have cited the decision you started with.
If an agency decision does not have Shepard's or Key Cite available, you can use database searching using either the citation of the decision or names of the parties as search terms, in order to find later decisions that have cited it. Also, if an agency decision is published in a topical database such as Intelliconnect, that source may have a citator built in. Shepardizing, KeyCiting, or BCiting (Bloomberg Law) a CFR section that is construed in the decision may be another option.
Agency decisions may also be subject to internal or external appellate review. Initial agency decisions may sometimes be appealed to a higher authority within the agency. The first level of review of an agency decision is known as an administrative appeal. Review of final agency decisions can generally be sought in appellate courts, when all internal agency procedures have been exhausted. On the federal level, appeal may be to a federal district court or to a circuit court of appeal. Again, agencies vary widely, and it's important to consult the enabling statute or a description of the agency's powers and procedures in order to conduct informed research. The precedential value of agency decisions depends on the level of deference given by a reviewing court. This complex topic is covered at greater length in the CALI Lesson “Scope of Judicial Review of Agency Decisions.”
The core sources of federal administrative materials got their start in the rapid expansion of executive and administrative law during the New Deal, triggered by the “Hot Oil” case (Panama Refining Company v. Ryan, 293 U.S. 388 (1935)). The case arose out of a dispute involving quotas placed on interstate shipment of petroleum products. The dispute was heard by the United States Supreme Court before anyone realized that the code section in controversy had already been altered by executive order (for a detailed explanation, see “The Federal Register: Origins, Formulation, Realization and Heritage,” at http://www.ofr.gov/documents/FedReg_speech.pdf ).
As a result of the controversy involving the Hot Oil case and its “hidden regulations,” and the clear need for a publication that informed both government and the public of the growing body of administrative materials, Congress leapt into action and in 1935 passed the Federal Register Act, which authorized and directed the publication of the Federal Register.
Because the Federal Register is essentially a notice publication, which publishes agency materials chronologically as they appear, it provides no subject access to the body of federal regulations. Therefore in 1937 Congress authorized the creation of the Code of Federal Regulations, or C.F.R., which mandated the publication of a subject matter compilation of regulations currently in force.
There are print as well as multiple electronic versions of both C.F.R. and Federal Register. Electronic versions of one or both include licensed sources such as Lexis, Westlaw, Bloomberg Law, and Hein Online; free versions include FdSys (the U.S. Government Printing Office source for authenticated government publications) http://www.gpo.gov/fdsys/ and other government and agency web sites (for selected parts of C.F.R.).
C.F.R. and Federal Register can be searched or browsed by keyword or topic via these electronic sources. Also, cross-references in annotated versions of the U.S. Code, or statute-regulation correlation tables, can be useful in identifying regulations on a topic. Consult “Locating and Updating Federal Administrative Materials” in Chapter 10 of this Guide for further detailed information on locating and updating federal administrative materials.
In general, the 50 states have administrative agencies and publications roughly similar to those on the federal level.
“Incorporation by reference” is a means by which an agency takes a standard published by another entity and makes it an enforceable part of the agency's rule. State and local regulatory codes often “incorporate by reference” the federal regulations on a topic, and add additional provisions of their own.
As previously noted, many states have a resource such as the Maryland Manual for background on state agencies and links to their Web sites and other materials. Background info on state agencies may also be found on a state’s official web site.
Generally, states have codified sets of agency regulations as well as a publication analogous to the Federal Register for notice and updating purposes. In Maryland, the Code of Maryland Regulations or COMAR is the codified source for administrative agency regulations; the Maryland Register is a biweekly updating publication.
Bloomberg Law, Lexis, and Westlaw provide versions of most state administrative codes, including COMAR. Some state agency Web sites also provide versions of their regulations. On the Maryland Division of State Documents Web site, COMAR and the most recent issues of the Maryland Register may be searched or browsed http://www.dsd.state.md.us/. Some state agency Web sites also provide versions of their regulations.
Many counties and municipalities have web sites that provide access to the full text of their regulations as well as their county codes. Law libraries and some public libraries keep copies of the print versions. The Maryland State Law Library’s Gateway to Maryland Law at http://www.lawlib.state.md.us/researchtools/sourcesmdlaw.html provides a comprehensive linked list of Maryland county and municipal materials.
For in depth information on topical research and updating of Maryland regulations, consult the CALI Lesson “Maryland Primary Sources”; “Maryland Administrative Materials” in Chapter 9 of this Guide; or “Maryland Local Law” in Chapter 9 of this Guide.