Introduction

We learned about how Congress and other legislative bodies create or amend laws in Chapter 2. Once the laws are on the books, however, an additional layer of legal requirements must be established to govern the implementation of the laws. These take the form of rules and regulations. In the federal government, the Federal Register (FR) and the Code of Federal Regulations (CFR) are the publications used to officially notify the public of proposed and final rules and regulations and codify them into a subject arrangement. In contrast to statutory law, which is the product of representative democracy (in other words, we don’t all have the opportunity to give a thumbs up or thumbs down on every bill), regulations are a form of participatory democracy, in that we the people have the opportunity to weigh in on proposed regulations and our opinions must (in theory) be considered by rulemakers.

Prior to the 1930s, each agency maintained its own set of regulations, which were not always published or publicly available. Eventually, the government came to realize that it was necessary to have an organized system for making not only the public but also other government agencies aware of existing regulations and proposed changes. The Federal Register Act of 1935 created the FR as a centralized place to publish regulations, notices, and presidential issuances. The FR was first published in 1936, closely followed by the CFR in 1938. The CFR is an annual subject compilation of federal regulations that have general applicability. Note that regulations that do not apply to the general population are not reproduced in the CFR.

The Administrative Procedures Act of 1946 (APA) updated the federal regulatory system to allow for public comment on proposed regulations. It also required that the public be notified in advance of proposed rules. Furthermore, agencies had to indicate the purpose of proposed rules. Finally, the APA mandated a specified time period for new rules to take effect. Subsequent laws have modified the rulemaking process to the point where some amendments to regulations are not required to go through a public review prior to their issuance.^[1]

Rulemaking may come about through a variety of triggering events. Within the executive branch, an agency may recognize a need for new or revised regulations to address new or changed circumstances. For example, when aerial drones first became available to the general public, the Federal Aviation Administration (FAA) recognized the need for rules to govern how and where drones are operated. Rules may also be developed in response to advisory committee recommendations, executive orders, Office of Management and Budget circulars, court rulings, and new or amended laws. In addition, individuals or organizations can petition an agency to issue new rules in response to changes in technology or in emergencies.^[2] An interesting example is the petition by Coalition for Rescheduling Cannabis submitted in 2002 to the Drug Enforcement Administration (DEA) to change the classification of marijuana in schedule I of the Controlled Substances Act (CSA). In 2011, the DEA published its denial of the petition, along with its rationale, in the FR (76 FR 40551).

Unified Agenda and Regulatory Plan

The Regulatory Flexibility Act of 1980 required that each agency prepare an agenda of its proposed rules. These are published in the Unified Agenda and Regulatory Plan (UA), sometimes referred to as the Semi-Annual Regulatory Agenda. The UA for each agency is available at Reginfo.gov. Businesses and other organizations refer to the UA to learn about potential changes in federal regulations so that they may prepare a response and submit it when a proposed rule is published. Searching the UA for Regulation Identifier Number (RIN) 0648-AU02 reveals that the National Oceanic and Atmospheric Administration (NOAA) has stated its intention to issue proposed rules about interactions with spinner dolphins in the main Hawaiian Islands since at least 2005. The UA lists previous related actions and cites the section(s) of the CFR that will be affected and the legal authority for the proposed rule.

Federal Register

The FR is published every working day in the federal government. It is arranged alphabetically by federal agency. Within each agency, the content is arranged with final rules first, proposed rules next, and notices last. In addition to proposed and final rules, the FR also contains several other types of documents and notices:

• Presidential documents including executive orders and proclamations
• Notices, such as announcements of grants, advisory committee meetings, hearings, and investigations; the availability of draft environmental impact statements; minor reorganizations; delegations of authority; and the filings of petitions and applications
• Required notices such as statements of the availability of public information and instructions for requesting information from each agency
• Each agency’s annual regulatory agenda

The Federal Register citation refers to the volume and page number. The citation format is: [volume] FR [page number]. Each volume of the FR is paginated continuously. For example, 81 FR 57854 leads us to Volume 81, page 57854 of the FR, dated August 24, 2016, a proposed rule and request for comments about Protective Regulations for Hawaiian Spinner Dolphins Under the Marine Mammal Protection Act. The proposed rule was issued by the National Marine Fisheries Service (NMFS). If you have a date rather than an FR citation, it’s still pretty easy to retrieve the issue for that date and use the table of contents to find what you are looking for.

Currently, the FR is still published in print, although there have been efforts in Congress to stop printing it. Most people use the FR through one of the many full-text electronic sources:

• HeinOnline (1936-present)
• Nexis Uni (formerly LexisNexis Academic) (1936-present)
• ProQuest Congressional (1981-present)
• govinfo.gov (1936-present)
• Federalregister.gov (1994-present)

Federalregister.gov presents the FR in a more user-friendly, disaggregated format. If we look up 81 FR 57854, we find that in addition to the FR announcement of a proposed rule, we can also see the section of the CFR (50 CFR 216) that will be amended if the proposed rule goes into effect. In addition, Federalregister.gov provides the Rule Identification Number (RIN), which takes us to the Unified Agenda in which the proposed rule was mentioned. Furthermore, Federalregister.gov lists the docket number, document number, and provides a link to the public comments. Over 4,000 comments were received on the proposed rule to protect spinner dolphins. Many of them appear to be identical and probably reflect campaigns for or against the proposed rule that provided suggested text for comments. To find out what happened to the proposed rule, consult Regulations.gov. There, we find that the comment period was reopened, and a total of 21,072 comments were received. The Regulatory Timeline sidebar shows that the rule was finalized and is now in the implementation phase. Regulations.gov also lists the name and contact information for the official at NMFS who is responsible for the regulation. This is helpful when patrons ask whom to contact with questions about a proposed or final rule.

Typical reasons why patrons might need to use the FR include:

• They want to read the text of a proposed rule or compare the wording of a proposed rule to the final rule.
• They want to understand how the comments influenced the final rule.
• Sometimes, they need to view other parts of the FR such as notices or petitions.
• Of course, you have to use the FR to view proposed rules that did not become final or to find rules that don’t have general applicability and aren’t in the CFR.

How do people find out about proposed rules? In addition to reading the FR, there are several other ways to track rule changes. These include:

• The semiannual Unified Agenda lays out which sections of the CFR an agency intends to update. Reginfo is the portal where you can find each agency’s regulatory priorities. There you will find that the Department of Homeland Security’s (DHS) FY2018 regulatory agenda contained a long list of tweaks to existing regulations on immigration, border protection, maritime security, disaster assistance, and other areas under the control of DHS.
• Agency websites typically have a news feed that covers proposed rules. You can sign up for email alerts or RSS feeds to keep up to date. For instance, the FAA’s Recently Published Rulemaking Documents page lists recently published notices, including new proposed regulations concerning requirements for aircraft engine performance in the event of the ingestion of birds into the engine (83 FR 31479).
• Professional associations, industry associations, and non-profit organizations typically track regulations that affect their interests. For instance, the American Farm Bureau Federation website lists numerous issues on which the AFBF lobbies, including opposition to a proposed ban on neonicotinoids intended to protect honey bees.
• News stories based on agency or industry news feeds may increase awareness. For example, Earth Island Journal reported on proposed rules to ban swimming with spinner dolphins.^[3]

Code of Federal Regulations

The CFR represents the codification of final rules into 50 titles that correspond to the titles of the U.S. Code. About one-fourth of the 50 titles are revised by the Office of the Federal Register each quarter, so that the entire publication is revised annually to incorporate all of the new and revised regulations. Due to the CFR’s bulk, libraries typically only retain the most recent edition in print and rely on the online versions for prior editions. Print editions are color-coded so you can easily tell which is the most recent edition. Even if a volume has not been updated, GPO prints a new cover with the latest color.

The citation format is [title] CFR [part] (year). A researcher may provide the CFR chapter number in the citation, which is not part of the legal citation.

The full text of the CFR is available in the following databases:

• HeinOnline Federal Register Library (1938-present)
• Nexis Uni (formerly LexisNexis Academic) (1981-present)
• ProQuest Congressional (1981-present)
• govinfo.gov (1996-present)
• eCFR (current edition; not official). A beta version of an improved eCFR is also available. The new eCFR has a point-in-time feature that allows researchers to view past versions of regulations. It’s important to note that there are imposter versions of the eCFR using a similar URL, such as https://ecfr.io/.
• Some agencies also publish pertinent regulations from the CFR on their websites.

Finding Aids

List of CFR Sections Affected (LSA)

In the days before online databases, the LSA was a critically important finding aid for tracking changes to the CFR. It lists each section of the CFR that has been amended during the time period covered by the issue of the LSA being consulted, along with the FR citations for the corresponding rules. Today, LSA, published monthly, provides a quick way to check for amendments to the CFR for those who know the section numbers of interest. The LSA is a collection in govinfo.gov.

Printed Indexes

The Office of the Federal Register prepares annual indexes for both the FR and CFR, and some titles of the CFR have their own indexes that were prepared by agencies. Consult the index if keyword searching of the full text does not produce the desired results. Commercially published indexes to regulatory publications provide greater subject access. The CIS Index to the Code of Federal Regulations was issued annually from 1977-2001.^[4] West’s Code of Federal Regulations: General Index began publication in 2006.^[5]

Which Source Should I Use?

There are many different websites and resources for finding regulations. Table 1 provides a simplified outline of which source to use under different circumstances.

Table 1: Recommended Sources for Regulations

Case Study: Regulations

Learning Objective: Learn how to trace the history of regulations using the Federal Register (FR) and Code of Federal Regulations (CFR)

Question: I need to find 29 CFR section 541.118 (all parts), “final rule,” background, and any publications that were issued with this.

The researcher did not provide the subject matter of this regulation, so we cannot start with a keyword search. If we look at the eCFR under Title 29, Section 541, we find that part 118 is missing, probably because the regulations were renumbered. In this case, we need to find the edition of the FR in which section 118 was revised. To do this, we can search for “29 CFR 541.118” in govinfo.gov. After some trial-and-error examination of the search results, we find the 2004 issue of the FR (69 FR 22122) in which the Final Rule was published. It mentions Part 541.118, which concerns the salary basis for determining whether positions are exempt from the Fair Labor Standards Act (FLSA). On page 22125 it goes on to explain that the proposed rules were published in 2003 in 68 FR 15560. We can retrieve that issue of the FR using the citation search option in govinfo.gov. The proposed rule explains that Section 118 is “being moved to a new subpart G.” With this knowledge, we can go back to the eCFR and find subpart G, and see that “salary basis” is now in 29 CFR 541.602. Agencies routinely renumber regulations, thus creating confusion when a researcher has a citation for a part that was later moved to a different section of the CFR.

 

We could also have searched the List of Sections Affected (LSA) for the missing part 118. LSA is a collection in govinfo.gov. However, it turned out that keyword searching for “29 CFR 541.118” was a faster way to find the answer.

The patron also asked for background information about this section. The proposed rule, 68 FR 15560, provides the regulatory history of FLSA, including the section on salary basis.

To find publications that were issued to explain the salary basis, we must consult the Department of Labor website. A search for FLSA salary basis retrieves Fact Sheet #17G, Salary Basis Requirement and the Part 541 Exemptions Under the Fair Labor Standards Act (FLSA). It explains the salary basis and exemptions and provides contact information for further inquiries.

Administrative Law Decisions

To enforce regulations, agencies conduct investigations, issue orders, and conduct quasi-judicial proceedings to review appeals of enforcement decisions. The enforcement actions, decisions, and orders are published in a body of work known as administrative law decisions. Each agency publishes its orders and decisions online and they may also be issued in printed form. For example, the Federal Communications Commission’s administrative law decisions are published in the FCC Record. It’s important to note that not all decisions are published; often, only those that are considered precedent-setting may be compiled into the published record.

Not infrequently, decisions are issued in the form of consent decrees, where the agency and the alleged violator reach an agreement about the amount of the fine to be paid and the action that must be taken to rectify the violation. For instance, the Environmental Protection Agency issued orders finding that many organizations and businesses in Hawaiʻi were in violation of the Safe Drinking Water Act due to their continued operation of large-capacity cesspools. In many cases, the EPA reached consent agreements with the violators. These agreements are posted on the EPA website.

Sources

Regulations and administrative decisions are available in full text in:

• HeinOnline
• Westlaw
• LexisNexis
• LLMC Digital
• Nexis Uni (formerly LexisNexis Academic)
• Agency websites (Department of Interior example: https://www.doi.gov/oha/organization/ibia/cumulative-chronological-index-of-cases)
• University of Virginia Library Administrative Decisions LibGuide
• The Law Librarians’ Society of DC maintains lists of free and subscription sources for the FR and CFR as well as other legal and regulatory information.

Like court cases, administrative law decisions have prescribed citation formats, usually following the form [volume] title or abbreviation [page number]. For example: 3 Decisions of the Department of the Interior. U.S. Department of the Interior 223 (1885) refers to volume 3, page 223 of the DOI’s decisions.

Reference Questions

Here are some common types of questions related to regulations and administrative law:

• Frequently, a patron has a citation to the FR or CFR and simply needs the text. Patrons can generally find current regulations on their own, so they typically need help with finding older FR citations or CFR citations that cannot be found in the current edition (usually the result of renumbering).
• Less commonly, patrons ask to see the comments made in response to a notice of proposed rulemaking. Depending upon how recent they are, these may be easy to locate, or they may not be available online. Although some agencies permit comments to be published on Regulations.gov, many agencies do not. If comments are not available electronically, patrons may need to visit an agency reading room in person to view them.
• Occasionally, patrons seek an administrative law decision and need help locating the text of the decision. As noted above, not all decisions are published.
• “What are the regulations?”
  • While you can refer a patron to the text of the CFR, the regulations themselves may be difficult for a layperson to understand. A better approach might be to look for guidance on the agency’s website. For example, extensive guidance on the Americans with Disabilities Act is available at ada.gov.
• “When did the regulations change?”
  • The CFR includes related FR citations. However, it may be difficult to discern in which issue of the FR the relevant regulation was published.
  • Federal agencies sometimes have a history of regulations on their websites. For instance, the FAA maintains a page with current and historical text from Title 14 of the CFR.
  • Major regulations are often covered in books, journal articles, or newspaper articles and may even be in Wikipedia.
• “I heard that the government is going to …” [tax emails, give us all microchips, etc.]
  • Some inquiries relate to hoaxes, rumors, or conspiracy theories.
  • The blogosphere is rife with misinformation and fake news.
  • Myth debunking sites such as Snopes.com or agency websites can provide background and factual documentation.
• “How many regulations are there, and how much have they increased in the past X years?”
  • Measuring regulations depends upon how one counts. For example, one could count how many final rules have ever been issued, then subtract final rules that were eliminated. That would be a lot of work, so another possible surrogate for regulatory volume is the increase in the number of pages in the CFR.

Librarian’s Library

United States. Office of the Federal Register. Federal register tutorial: what it is and how to use it. https://www.archives.gov/federal-register/tutorial

Provides great detail about the history and contents of the FR and CFR and how to use them.

Congressional Quarterly. (2015). Federal regulatory directory. 17th ed. Washington, D.C.: Congressional Quarterly, Inc.

Briefly describes the history and function of each agency. It also lists the legislation administered by each agency, key personnel and offices, libraries and reading rooms, and key publications.