FEDERAL REGULATIONS

Fall 1997

I. Federal Regulations

• A. Introduction

  Federal Regulations are primarily the consequence of the regulatory actions taken by Congress. Congressional legislation covers a multitude of subject matter often after a painstakingly detailed hearing process. The process of expert testimony, debate and careful consideration at the committee or subcommittee level in Congress is laborious but necessary. The complex subject matter dealt with by Congress requires a detail-rich process. Once legislation is passed, the law is given to a federal agency for implementation. It is beyond the ability of Congress to develop the expertise in all subject matter areas required to efficiently implement the law. Federal agencies are charged with faithful implementation and enforcement of the laws through the regulations they promulgate. These rules and regulations have the full force and effect of law. This guide will discuss how these rules and regulations can be accessed and updated.

• B. History

  As the New Deal unfolded in the early 1930's and Congress began to increase both the number of agencies and the scope of the authority of those agencies, the agencies began promulgating voluminous regulations. There was no mechanism for publishing, codifying, accessing or updating these regulations. There was considerable confusion about which regulations were in effect at any given time. In several 1934 U.S. Supreme Court cases involving administrative law violations, difficulty of keeping abreast of the current body of administrative law became obvious. Neither the defendants nor the government correctly understood which regulations were currently in effect. In response, Congress passed the Federal Register Act (ch. 417, 49 Stat. 500 (1935)). The Act mandates the daily publication of the Federal Register, whose purpose is to serve as a central repository for the publication of all newly adopted rules and regulations. Furthermore, publication in this periodical is constructive notice to all affected.

  Although the Federal Register was helpful in notifying the government and people of changes and additions to federal regulations, the current regulations in force were still not codified. Congress amended the Federal Register Act in 1937 to require codification and subject access to the regulations through publication in the Code of Federal Regulations (CFR). The first CFR was published in 1939.

  Unfortunately, the Federal Register Act did not address how agencies made regulations. This mysterious process was well beyond the understanding and accessibility of most citizens being affected by the regulations. The Administrative Procedures Act (APA) was passed in 1946 clarifying the process of making regulations, allowing greater accessibility and participation by all citizens. The APA required the publication in the Federal Register of all proposed rule changes and a period for public comment. To increase public awareness of the manner in which regulations were proposed and adopted, Congress passed additional acts requiring publication of more detailed information in the Federal Register.

  Recently, the administrative regulatory landscape was changed by passage of the Negotiated Rulemaking Act of 1990 (NRA), 5 U.S.C §§ 561-570. The value of negotiated rulemaking is that parties potentially affected by an agency's proposed rule can be involved in the drafting of that rule. The parties can discuss potential effects of the proposed rule that would otherwise be relegated to the commentary process or the expensive and time consuming administrative or law hearings.

  Federal agency heads are authorized by the NRA to consider the appropriateness of applying negotiated rulemaking when drafting a rule. If the agency head elects the negotiated regulation or rulemaking process, he may employ a convener to identify all interested parties to form a committee. The NRA also explains how the committee will conduct the negotiation. If the negotiations result in a consensus, the parties should be less likely to judicially challenge the substance of the negotiated rule.

II. The Federal Register

• A. What is it?

  The Federal Register is a publication in which all proposed and final regulations having general applicability and legal effect must be published. The administrative regulation-making process requires that proposed regulations be published and that a comment period be provided. Once the regulation becomes final, it is published again in the Federal Register and later codified in the Code of Federal Regulations.

  One of the strengths of the Federal Register is its currency. Its uses include viewing proposed regulations, final regulations and recent amendments to existing regulations. The Federal Register is most often used to find changes that have occurred since the most recent publication of the Code of Federal Regulations.

  The Federal Register is published every weekday. Each calendar year comprises one volume with the pages consecutively numbered throughout the year. In addition to the proposed and final rules, the Federal Register also publishes other documents and notices of meetings and actions taken. The format is broken into the following groups of information:

  • Contents--Under the name of each alphabetically listed agency is a list of that agency's documents arranged by category with page number;
  • Presidential Documents--executive orders and proclamations;
  • Rules and Regulations--newly passed with dates effective;
  • Proposed Rules--rules proposed by an agency with accompanying comment period;
  • Notices--license revocations and application deadlines;
  • Notices of Sunshine Act Meetings;
  • Reader Aids--Contains helpful telephone numbers, a list of newly passed public laws and a cumulative list of CFR parts affected;
  • Special Sections--Some agency documents are taken out of order and published in the back of the issue for editorial convenience.
• B. How Do I Use It?

  Researchers working in a heavily regulated area of the law scan the Federal Register each day. To find what is contained in each issue, use the table of contents or the CFR Parts Affected table located in the front of each issue. The table of contents is arranged alphabetically by issuing agency. There are two CFR Parts Affected tables. The table located in the front of the Federal Register only includes changes to CFR regulations covered in that particular issue. The other CFR Parts Affected table is located in the back of the Federal Register and its function will soon be described.

  Researchers that do not review each issue of Federal Register may want to consult the official index entitled the Federal Register Index. Like the table of contents, this index is also arranged alphabetically by issuing agency. Each monthly publication is cumulative for the previous months of that year, so that the December index will be the annual index. Also like using the table of contents, knowledge of which agency would produce the regulations about an issue is required. Alternatively, the CIS Federal Register Index is a weekly publication that cumulates monthly. Many access points are indexed within this publication including subject, agency docket number, date effective, and comment deadline.

  Another useful function of the Federal Register is to update existing regulations promulgated in the Code of Federal Regulations. This involves using other bibliographic tools in addition to the Federal Register. The entire process is explained in "VI. Updating Federal Regulations." The Reader Aids section in the back of each Federal Register issue provides information to assist in the updating process. A table of telephone numbers is provided for information and assistance, including numbers for an electronic bulletin board and a fax-on-demand service. For example, using these services you can have the daily Federal Register table of contents faxed to you or use a modem to access a list of documents on public inspection, public law numbers and other finding aids. Another useful table in the Reader Aids section is the cumulative "CFR Parts Affected During (the month in which this daily issue is published)." Each daily table in the Reader Aids section is cumulative for that month.

• C. Where Is It?

  The Federal Register is available in many formats.

  1. Internet.
     Government Printing Office (GPO) provides free access to the full text of the Federal Register. The service includes daily updates, the table of contents, finding aids from the print version and graphics. The toll free telephone number for assistance is 1-888-293-6498. The GPO site has more than one gateway. Searchable archived versions back to 1994.

     The URL is http://www.gpoaccess.gov/.

     Several commercial Federal Register services are available online as well, such as Counterpoint at http://www.counterpoint.com.

  2. CD-ROM.
     There are several commercial CD-ROM versions of FR including West Group's LawDesk (http:/www.westpub.com), Solutions (http://www.env-sol.com), and Counterpoint (http://www.counterpoint.com). Typically, these are updated either weekly or monthly.
  3. WESTLAW.
     Full text access is available in the FR database with retrospective coverage to July 1, 1980. The database is updated daily. It is searchable by Terms & Connectors or natural language.
  4. LEXIS.
     Access is available in the CODES and GENFED libraries in the FEDREG file. Retrospective coverage extends to July 1980. It is searchable by boolean or Freestyle (natural language).
  5. Paper.
     The Federal Register is available on paper. Daily paper issues are published by the Office of the Federal Register, National Archives and Records Administration, Washington, D.C. It is distributed by the Superintendent of Documents, Government Printing Office to federal depository libraries (including many public and academic libraries) within one or two weeks of the date of coverage. The Government Printing Office also operates 20 + walk-in bookstores around the country where government documents in stock may be purchased and out of stock documents may be ordered.
  6. Microform.
     The Federal Register is available in microform from the Office of the Federal Register, National Archives and Records Administration and from commercial vendors.

  Click here to find out where the Federal Register can be found in the Cornell Law Library.

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