Introduction to Administrative Law Research: Researching Administrative Rulemaking (Rules) and Administrative Adjudication (Decisions)

Agencies entrusted with lawmaking activities by their enabling statute can act as if they were mini legislative bodies. The number of administrative agencies continues to rise as the complexity of running a government has increased. Today, there are 429 federal agencieswhose listing is easily accessible online. Some of them work as independent agencies and government corporations.Others functions as more or less separate branches within cabinet departments. All are now involved in the regulation of business and other private activities.

How Rulemaking Works

Usually the rulemaking process starts with a simple notice and comment process. Agencies are required by the Administrative Procedure Actto notify interested parties of the rules they intend to adopt. Those interested may send their comments about the proposed rule to the agency, and the agency is required to take them into consideration. Again, when the agency passes its final rule, it must give notice of the rule to all affected by it. In that end, the agency publishes its final rules. The date of the publication of the final rule marks the beginning of the grace period at the end of which the persons affected by the rule will be found in violation of the specific policy.
All these steps are recorded and published in various repositories: Both the provisional and the final administrative regulations are published in a daily and official gazette called the Federal Register, while the final regulations are further systematically arranged and codified in another publication called, the Code of Federal Regulations.

Administrative rules are available from a multitude of sources: free-of-charge and fee-based. What is remarkable is that administrative law research can be successfully done free-of-charge, by using government documentation. Of course, this does not mean that proprietary databases are not useful: in this area too, they offer an ease of use which saves considerable time when research needs to be done in a timely fashion.

Examples of rulemaking or administrative implementation of statutory provisions

For example, Congress passed the Immigration and Nationality Act (INA in 1952).Since then, Congress amended it a few times, including in 2002 through the Homeland Security Act. Independent of these congressional acts, various federal agencies working within their delegated powers further developed and implemented the act and adopted specific rules. For instance, under the authority of the Homeland Security Act, the federal agency —Department of Homeland Security — adopted an interim final rule regarding the disclosure of records and information. This rule was published on January 27, 2003. Note that although the rule became effective on the date of its publication, January 27, 2003, written comments were welcome until February 26, 2003. Both the proposed rule, the final rule and the call for The rule was written comments were published in the Federal Register. The final rule was published in volume for 2003 (which is the 68th volume) and it started at page 4,056. Its citation thus becomes 68 Fed. Reg. 4,056.

Another example of detailed rule making activity is the implementation of the Clean Air Act (CAA). CAA authorizes the Environmental Protection Agency (EPA) to regulate hazardous air pollutants. Under that authority, for instance, EPA proposed new air rules to reduce interstate transport of fine particulate matter and ozone (Interstate Air Quality Rule). The rules require states and the District of Columbia to reduce emissions from some pollutants. The EPA published its proposed Interstate Air Quality Rule in the Federal Register, on January 30, 2004. The rule was published in the Federal Register volume for 2004 (which is the 69th volume) and it started at page 4,566. Thus, it can be cited as 69 Fed. Reg. 4,566-4,650.21. The rule’s purpose was to minimize the cause of acid rains. Its aim was to reduce emissions of sulfur dioxide (SO2), and nitrogen oxides (NOx) by 2015.Being an administrative rule, its purpose is to implement the more vague statutory provisions, and unlike the work of Congress, agency rules are very detailed. For example, the Interstate Air Quality Rule stated that SO2 emissions must be reduced by 3.6 million tons in 2010 (approximately 40 percent below current levels) and by another 2 million tons per year when the rules are fully implemented (approximately 70 percent below the 2004 levels). Similarly, it aimed for NOx emissions to be cut by 1.5 million tons in 2010 and 1.8 million tons annually in 2015 (about 65 percent below 2004 levels). Those rules have been constantly amended, with the most recent proposed rule being published on August 2, 2010 and then further adjusted on June 5, 2012. What is important to remember is that agency rulemaking is very detailed and also well recorded, and thus easily to research it it happened within the last 5 to 10 years.

How Administrative Adjudication Works

Unlike the common perception, courts are not the main instrumentalities for the disposition of controversies. Within a complex government, more and more controversies are resolved before administrative judges, within the scope of power delegated to various administrative agencies. Administrative adjudication has grown both at the federal and state level. At the federal level, for example, adjudication takes the form of a trial-usually called an administrative hearing-and informal adjudication-often described as the administrative process that is neither rulemaking nor a hearing.

Examples of administrative adjudication

According to their enabling statute, some agencies can and do function both in an rulemaking and adjudicative capacity. For example, in addition to its rulemaking tasks, the EPA has adjudicating functions. The Toxic Substances Control Act requires any chemical manufacturer, who learns that a product presents “a substantial risk” of health or environmental harm, to inform the EPA, and thus it delegates adjudicating authority to the EPA for all instances of corporations failing to do so.

A few years ago, the EPA filed a complaint against the DuPont Corporation for failing to inform the agency about the toxic effects of a soap like material (Perfluorooctanoic acid which is also known as C-8), DuPont used to make stain- and stick-resistant surfaces and materials for a wide array of products, such as Teflon frying pans (Teflon is thte DuPont brand name for Polytetrafluoroethylene (PTFE), a synthetic fluoropolymer of tetrafluoroethylene). The EPA complaint was the result of pressure coming from the Environmental Working Group, a private advocacy group, and by Ohio and West Virginia residents. The administrative adjudication ended in this instance with a settlement filed with the EPA’s Environmental Appeals Board.

In another example of administrative adjudication, when a person disputes federal retirement benefits, she will first have to raise that dispute with the Social Security Administration of the Department of Health and Human Services, which will issue an order or decision. If the aggrieved person is still unhappy with the outcome, she will seek next a court’s intervention.

Administrative adjudications can be appealed in courts of law

Under the Administrative Procedure Act, all administrative decisions are subject to judicial review in courts. The scope of judicial review is limited, and it does not constitute a retrial of the case. Its scope is similar to that of judicial appeal of trial court decisions.

Some agencies function only in an adjudicative capacity. However, in that capacity they issue rules regarding their adjudicative procedure. For example,
the Provider Reimbursement Review Board (PRRB) issues Rules (Board Rules) on the Medicare Part A appeal process and procedures at the PRRB. A relatively recent but complex controversy focused on the reimbursement amount health care providers receive for inpatient services rendered to Medicare beneficiaries by hospitals which serve a disproportionate share of low-income patients. The adjustment amount is determined in part by the percentage of a hospital’s patients who are eligible for Supplemental Security Income (SSI), called the SSI fraction. Each year, the Centers for Medicare & Medicaid Services (CMS) calculates the SSI fraction for an eligible hospital and submits that number to the hospital’s “fiscal intermediary,” a Department of Health and Human Services (HHS) contractor. The intermediary computes the reimbursement amount due and then sends the hospital a Notice of Program Reimbursement (NPR). According to the enabling statute, 42 U.S.C. §1395oo(a)(3), a provider dissatisfied with the determination has a right to appeal to the Provider Reimbursement Review Board (PRRB or Board) within 180 days of receiving the NPR. In all such situations, according to 42 CFR 405.1841(b) (2007) the Secretary of HHS is authorized the PRRB to extend the 180-day limit, for good cause, up to three years. The controversy at hand sprang from a computation error which was made public in 1997 by CMS. Hospitals affected by that reimbursement error, and thus which had lost government money, appealed to PRRB for loss of revenue from 1987 through 1994, requesting PRRB to hear their case despite the long lapse of time, arguing that their case was entitled to equitable tolling of the limitations period. PRRB declined to hear the case stating that it had no equitable jurisdiction. The plaintiffs appealed. The district court upheld the PRRB’s decision. The D.C. Circuit reversed. The U.S. Supreme Court reversed the District Court decision, too and, in Sebelius v. Auburn Regional Medical Center (2013) held that the statute of limitations is not a jurisdictional issue, and that PRRB has to hear the case. It remanded the case to the trial court for further fact finding.

While many agencies announce their decisions, there is no statutory requirement for their publication similar to the statutory requirement to publish both the agency’s proposed and final rules. As shown in the next section, this creates a rather cumbersome situation for those interested in finding agency decisions. Federal agencies have excellent Web sites though and they contain their more recent rulemaking and decisional law. However, be prepared to encounter surprises because nothing mandates them to permanently keep those documents available to the public.

Two of the major fee-based electronic services, Westlaw and Lexis, cover many of those decisions, while well-established publishers, such as Commercial Clearing House (CCH), which specializes in publishing administrative decisions, have entered the digital realm with various degrees of success.