LRSP - Research of Administrative Law

Researching Federal Administrative Law

FIU Law Library 2025 Professor Hoskisson

What is Administrative Law?

Administrative law is the law governing the forms, functions, and activities of government agencies. As outlined in the Administrative Procedure Act (APA) the term agency refers to "any 'authority' of the United States government except Congress, the federal courts, territorial governments, and certain military entities."

What Branch of Government Are Agencies?

Types of Administrative Agencies

Executive Agencies

Independent Agencies

Administrative agencies are also referred to as commissions, boards, authorities, bureaus, offices, departments or divisions. They handle complex issues of insurance, aviation, or environment.

Functions of Agencies

(1)Investigating - Agencies will investigate matters within their jurisdiction which is established through legislation. (2) Rulemaking- Agencies write rules to create policies and procedures for the individuals and entities they have been assigned to regulate through statute. (3) Adjudications - Agencies will also make adjudications "adminsitrative actions" that impact the rights of individuals within their jurisdiction.

The Adminstrative Procedure Act (APA)

In response to the concerns about the increased number of administrative agencies Congress enacted the federal Adminsitrative Procedure Act (APA). It was signed into law by President Truman. The APA was intended to improve the administrative process, provide due process, enhance uniformity and provide for judicial review of adminsitrative action.

Rulemaking Process

Initial Steps

Agencies Initial Steps (What initiates a new rule?)

Agency Priorities (GPRA Modernization Act) 2010

New Scientific Data and/or Technologies

Required Reviews (review existing regulations)

Statutory Mandate

Recommendations from Other Agencies

Petitions

OMB (OIRA) Prompt Letters

OMB Review of Proposed Rule under Executive Order 12866

After a new rule or amendment is proposed the OMB or the Office of Management and Budget in the Executive Branch reviews rules that it determines to be "significant" it does not review independent agency rules as they are exempt from OMB review. This review is ordered according to Executive Order 12866

You can access review reports on RegInfo.gov

Example of a Petition

Proposing a Rule

Notice of a Proposed Rule

Upon preparation of a proposed rule the APA requires the agency to provide a "notice of proposed rulemaking" which let's the public know what the proposed rule is and requests the public make comments. This notice is published and found in the Federal Register.Rules may only be established after this notice and comment procedure according to the 5 U.S.C. 533 of the APA. There are a few exemptions including: military/foreign affair functions, nonsignificant rules, and emergencies, etc.

Where do we find the notice and proposed rules?

Proposed rules are going to published in the Federal Register for Comment (here is where you can find them online):

federalregister.gov

regulations.gov

reginfo.gov

Regulation Tracker on Justia

HeinOnline

Westlaw & Lexis

What is the Federal Register? What is the CFR? How are they Different?

The Federal Register is the chronological publication of proposed regulations, final regulations, and related materials. The Code of Federal Regulations (CFR) is a subject arrangement of regulations. A regulation will be published first in the Federal Register and will later be included in the appropriate volume of the CFR. Like Congressional legislative history, the regulatory history recorded in the Federal Register can be invaluable to researchers interested in the intent of lawmakers and the purpose of regulations.

Public Comments

Under the APA an agency must provide for submission of comments by electronic means. They have 60 day comment period generally. A public hearing may be required by statute or agency policy. Otherwise it is within the agency's discretion to decide to hold a public hearing discussing the new rule. The best place to find public comments is on Regulations.gov. This is also the website an individual or entity would go to make a comment.

Public Comments can Be Made and Found on Regulations.gov(They cannot be found on Lexis/Westlaw)

Preparation to Finalize Rule & OMB and Congressional Review

Types of Final RulesFinal Rule - All additions and changes made to the regulatory text based on discussion, review and public comments to create final rule. Interim Final Rule - this type of rule adds, changes or deletes regulatory text and requests further comments, with the possiblity of changing the rule in the future. Direct Final Rule - this type of rule adds, changes or deletes regulatory text, with a duty to withdraw the rule if the agency receives adverse comments or objections within the period specified by the agency. If no objections or adverse comments occure it is directly published as a final rule without further review.

All Final Rules Can be Found in Federal Register and Code of Federal Regulations

Hypothetical #1

1. Using the Regulations.gov website search for the following docket: FAA-2019-0770

2. After locating the FAA-2019-0770 docket, what is the name of the proposed rule?

Flight Attendant Duty Period Limitations and Rest Requirements

3. Click on the Unified Agenda for FAA-2019-0770, when was this rule first proposed?

09/25/2019

Hypothetical #1 (continued)

4. When did the Final Rule become Effective?

11/14/2022

5. What is the Code of Federal Regulations (C.F.R.) Citation for this final rule?

14 C.F.R. 121.467

6. What law provided the legal authority for this regulatory rule?

Pub. L. 115-254, sec. 335(a)

132 Stat. 3186

7. Was there a OIRA review of this rule? (visit reginfo.gov)

Yes.

How to Find Proposed and Final Rules on Westlaw

Try looking for the following: 88 FR 11704

How to Find Proposed and Final Rules on Lexis

Questions?

Where to Find Agency Priorities/Agendas

RegInfo.gov

Independent Agency Website

Executive Agencies - agencies that carry out the responsibilities of the executive branch. The head of these executive agencies can be removed without procedure by the President. There is also usually one head of the department rather than a commission.

Examples:

Department of State

Department of Education

Department of Justice

Department of Labor

Independent Agencies - are simply executive agencies that operate outside the influence of the executive branch of government. They are generally run by commissions or boards of people and can only be removed by APA procedures.

Examples: Environmental Protection Agency (EPA) Consumer Product Safety Commission

The Supreme Court has removed some protections in the last few years that previously limited the presidents power to remove directors of independent agencies. This has given the president the power to fire independent agency directors without cause. But for-cause shields for multi-member bodies have survived thanks to Humphrey’s Executor v. US, a 1935 decision that upheld safeguards for FTC commissioners.

Petitions

Petitions are another change allowed by the APA where an individual can petition for a new rule or a change to a current one. Petitions can be found on each individual agency website. EPA.gov/petitions

OIRA Review

Found on reginfo.gov

The purpose of the prompt letter is to suggest an issue that Office of Management and Budget in the Executive Branch (OMB) believes is worthy of agency priority. Rather than being sent in response to the agency's submission of a draft rule for Office of Information and Regulatory Affairs (OIRA) review, a "prompt" letter is sent on OMB's initiative and contains a suggestion for how the agency could improve its regulations.