Compiling a Federal Regulatory History - California Western
Compiling a Federal Regulatory History
Compiled by: Bobbi Weaver
Foreign & International Law Reference Librarian
California Western School of Law
Rev: Sept. 2006
SCOPE: This research guide is not all-inclusive. It does, however, present resources available at the California Western library and online used to compile a federal regulatory history. It is designed to provide the researcher with guidance as to the location of materials dealing with this subject.
Additional research can be conducted by using the KIM system, legal periodical indices, and other finding aids. Access to Lexis, Westlaw, and the Internet at the library is limited to students and faculty at California Western.
We welcome suggestions for improvement on this and other research guides. Please consult the Reference Librarian with suggestions and further research questions.
Researching federal regulations can be a scary prospect for many legal scholars. What is especially difficult is trying to find out the regulatory intent of the agencies.
Much like one might use legislative history to determine the legislative intent behind our statutes, the regulatory history can also be examined to attempt to ascertain regulatory intent. Unfortunately, in the regulatory field, there are not a lot of commercial resources to assist us like there are in the legislative field. But, it can be done.
Below is a checklist of how you might research the intent behind federal regulations.
1. Find your regulation as it is published in the Code of Federal Regulations. What is the citation?
The Code of Federal Regulations, or CFR, is the codified version of the federal regulations. Prior to being published in the CFR, regulations go through a rulemaking process which culminates in a final regulation being published in the Federal Register. The current CFRs can be found in the Core Collection (1st Floor) of the CWSL Library with the federal materials. It is also accessible on Westlaw, Lexis, and the free Internet at http://www.gpoaccess.gov/cfr/index.html
2. Look for the "Source" note for your section or part of the CFR. What does it say?
Generally, the "Source" note can be found at the beginning of a CFR part OR in brackets after a particular CFR section. The source note indicates where the final rule or rules that resulted in the CFR section or part text were published in the Federal Register.
Ex. [From 33 CFR Part 155, Subpart A; bold print added for emphasis]
Source: CGD 75-124a, 48 FR 45714, Oct. 6, 1983, unless otherwise noted.
Sec. 155.100 Applicability.(a) Subject to the exceptions provided for in paragraph (b). .
* * *
[CGD 75-124a, 48 FR 45714, Oct. 6, 1983, as amended by CGD 90-071a, 62 FR 48773, Sept. 17, 1997]
3. Locate the Federal Register publication and read the preamble of the final rule(s).
Current editions of the Federal Register are shelved near the CFRs. However, most historical research will require you to look in older issues. Past issues of the Federal Register are available on microfiche in the Microforms Room on the 2nd Floor. Federal Register issues from 1994 are also available online at http://www.gpoaccess.gov/fr/index.html
4. Note the rulemaking's docket number.
This number will be important if you want to obtain copies of documents filed in the docket from the particular agency involved.
Ex. [From 62 Fed. Reg. 48773; bold added for emphasis.]
DEPARTMENT OF TRANSPORTATION
33 CFR Parts 155 and 156
AGENCY: Coast Guard, DOT.
ACTION: Final rule.
5. Look for references to documents such as "Environmental Impact Statements" and "Economic Analyses."
These documents are generally filed with the regulatory docket and available for public inspection. You may also be able to get copies of these items by requesting them from the agency or by filing a Freedom of Information Act request with the agency. Be cautioned that although the agency might be obligated by FOIA to provide the information, they are not obligated to provide it for free. Some agencies do provide online access to regulatory dockets, which makes life a little easier for those living outside of the Washington D.C. metropolitan area.
6. Look for discussion of public comments to and/or public meetings concerning the rulemaking.
For most regulations, the public is permitted to comment on proposed regulations under the Administrative Procedure Act. These public comments are also filed with the regulatory docket and kept at the agency. They are also summarized in the preambles of rulemaking publications in the Federal Register. Some agencies will provide online access to copies of public comments.
7. Look for references and citations to rulemaking publications in the Federal Register that preceded the final rule.
Usually, the earlier in the rulemaking process, the more insight into regulatory intent is apparent in rulemaking publications in the Federal Register. When a regulation is first proposed, the agency will likely discuss the legislation that was the impetus for the rulemaking, or perhaps a petition for rulemaking was filed by an interested party. Also, court rulings on the constitutionality of a regulation may result in an amendment to that regulation.
Ex. [From 62 Fed. Reg. 48773; bold print added for emphasis]
Section 4110 of the Oil Pollution Act of 1990 (OPA 90) (Pub. L. 101-380) adds a statutory note following 46 U.S.C. 3703 requiring, in part, the establishment of minimum standards for overfill devices on certain tank vessels.
To meet the statutory requirements, the Coast Guard published a notice of proposed rulemaking (NPRM) entitled, "Overfill Devices," in the Federal Register (58 FR 4040; January 13, 1993). The Coast Guard received 32 letters commenting on the proposal . . .
8. Review the preceding rulemaking publications for indications of regulatory intent, references to environmental and economic reports, public comments, and public meetings.
If something in the preceding rulemaking looks like it might be helpful, note the details provided so that you can search for it online or request it from the agency.
9. Look for the documents you want online or contact the agency.
Generally, a rulemaking publication will provide an agency contact in its preamble, usually preceded by the phrase "For Further Information." Write down that contact information. Also, remember to note the docket number for the regulation so that the agency personnel can locate the docket file for you. As noted above, some agency dockets are available online. Currently, the following agencies have online docketing information:
If the contact information is not provided or if the regulation is old and the contact information is dated, you can find addresses and telephone numbers for federal agency personnel in the following resources:
- Federal Regulatory Directory [REFERENCE, JK610 .F29]
- Federal Staff Directory [REFERENCE, JK723.E9 F44]
- United States Government Manual [REFERENCE, JK421 .A3]
- Federal Yellow Book [REFERENCE, JK6 .F45]
10. If you need further assistance, consult the Reference Librarian on duty.
If you’re stuck, please stop by the Reference Desk during regular hours. The Reference Librarian on duty can assist you in locating items online and in print.
11. Additional Reading
The following materials may assist you in better understanding the rulemaking process:
- A Guide to Federal Agency Rulemaking [4th Fl., KF5407 .M56]
- Rulemaking: How Government Agencies Write Law and Make Policy [4th Fl., KF5411 .K47 1999]
- Federal Administrative Procedure Sourcebook [4th Fl., KF5406 .A3 2000]
- The Federal Register: What It Is and How to Use It [REF KF70 .A2 U54 1985] [Also available online at http://www.archives.gov/federal-register/tutorial/index.html]