Jan Bissett is a Reference Librarian in the Bloomfield Hills, Michigan office of Dickinson Wright PLLC. She is a past president of the Michigan Association of Law Libraries and has published articles on administrative and research related topics in the Michigan Association of Law Libraries Newsletter and Michigan Defense Quarterly. She and Margi Heinen team teach Legal Information Sources and Services for Wayne State University’s Library and Information Science Program in Detroit, Michigan.
Margi Heinen is the Librarian at Jaffe, Raitt, Heuer & Weiss in Detroit, Michigan. She teaches Legal Resources at the University of Michigan’s School of Information and is team teaching with her co-columnist, Jan Bissett, at Wayne State University’s School of Library and Information Science. She regularly does Internet training of legal staff at her firm and recently collaborated with Kathleen Gamache on an I.P.E. presentation, Internet Strategies for the Paralegal, in Michigan. She is active in the Law Librarians of Metro Detroit and is a member of the American Association of Law Libraries.
Law librarians are often asked for research assistance in locating federal regulations. New associates generally have limited experience in researching this area of law. As law students, an introduction to regulatory law usually comes as a very tiny portion of first year legal research and writing. The Code of Federal Regulations (CFR) and the Federal Register are sources of minimal interest compared to learning how to research and understand much emphasized case law. A quick look at a sample of advanced Legal Research and Writing course syllabi shows that researching regulations is likely to be examined more fully in these non-mandatory courses or in “bridging the gap” programs such as the University of Washington’s Annual Bridging the Legal Research Gap.
Some helpful guides are available on the web, notably the LLSDC’s Legislative Sourcebook: Questions & Answers in Legislative and Regulatory Research, Jacob Burns Law Library’s Locating Federal Regulations (reprinted at AALL’s Readers Instruction and Patron Services Guide) from George Washington University (1994) and Genie Tyburski’s How To Research articles at the Virtual Chase. To aid those researchers with dimming memories of how to find regulations (and to remind ourselves), we offer the following questions and answers.
How do I find the appropriate regulation if I have the U.S. Code section?
· Check an annotated code, for example, the United States Code Service (U.S.C.S) [Lexis Publishing] provides references to the Code of Federal Regulations and the cite of the corresponding regulation following the text of the statute and its history notes.
· You will also find these references following U.S.C.S. sections on Lexis, but interestingly, the sections checked did not have hot links to theCFR, so researchers are forced to run a second search in the CFR. Westlaw’s USCA database provides CFR citations under “Library References” with a hot link to the text of the CFR.
· Index and Finding Aids to Code of Federal Regulations. This index volume includes “… a table of laws and Presidential documents cited as authority for regulations currently codified in the CFR…” . You can check the rulemaking authority for codified regulations by U.S. Code or CFR section. Available in print as part of the CFR, republished as a separate volume with U.S.C.S. The print version is revised every January 1; the GPO Access version is as of 1998.
· The search tool for Cornell’s United States Code links to the Code and provides links in the right-hand frame to corresponding CFR sections.
I am confused by the different editions of the CFR. The print volumes have different publication dates, but online it appears that all the titles have the same date. Isn’t the online more current?
Although the CFR is annually revised, there is a staggered publication schedule for the fifty titles. The titles are revised annually in four segments, depending upon the title. It’s important to check the “Revised as of ..” date on each volume. The Government Printing Office assists researchers by changing the color of the paperbacks that have been revised each year. An explanation of this staggered publishing can be found at GPO Access: About the Code of Federal Regulations. The GPO Access CFR follows this updating schedule. Other online versions of the CFR should be carefully checked for a “Current through…” date.An October 12, 2001 review of Westlaw’s CFR database revealed it was current through September 4, 2001 while Lexis indicated their CFR file was “updated within two weeks of a regulation’s publication in the Federal Register”.
How do I update the regulation in the CFR?
Regulations appear in the Federal Register before becoming codified in the CFR. The Federal Register is published each business day (except holidays) and contains the text of agency regulations as well as notices and announcements from agencies. Presidential documents and Executive Orders also appear there. As with other legal materials, the regulations first appear chronologically so you will need to use a search engine or finding tool.
· You can search the Federal Registeror use Westlaw or Lexis. Search strategies may differ depending upon the information you have. Check the “List of Sections Affected” table, search by topic, name or section number.
· Check the List of Sections Affected (LSA). The LSA is published monthly and records changes, additions, deletions, and amendments as well as proposed CFR sections.
· The National Archives and Records Administration’s Federal Register Indexes and Tables of Contents provide links to the text of the regulations and go back to 1998. The Index files go back to 1994, but do not provide links so an extra step is needed to retrieve the appropriate page numbers from the GPO Access site.
I have been asked to do a “regulatory history” – what does that mean?
Tracking the intent of the administrative regulation or the text of the regulation at an earlier time requires the researcher to start with the regulation at its most recent publication in the Federal Register and work backwards to the needed time frame. The Federal Register publication of final regulations includes a citation to the publication of the proposed regulation and usually a preamble summarizing the comments received in response to the proposed regulation and whether the agency made any revisions based on those comments. The researcher often must go back further and actually look at the published proposed regulation to see if the preamble to that proposal describes the intention of the agency in developing the regulation. Considerable time (years) can elapse between the proposal of a regulation and its finalization, if indeed that ever occurs.
While tracing references back through the Federal Register, the researcher will encounter the proposed regulation as part of the “Unified Agenda”.Agencies are required to publish semi-annually the status of proposed regulatory actions. Researchers can search the Unified Agenda to monitor the progress (or lack thereof) for proposed regulations. The agenda and proposed rules also list a contact person and telephone number so a researcher can inquire into the agency’s expectations of final action.
I find a regulation cited or referenced in one part of the CFR, but I cannot find that regulation under its title and section in the CFR. What am I missing?
Because the CFR, like other codifications, has sections added and deleted at various times and through various agency actions, it is possible for an old, deleted section to still be referenced by an unrelated section. This happens frequently enough to cause considerable gray hair amongst researchers. Whenever a cite to a CFR section cannot be located in full text in the current version of that code, check the citation Federal Register or List of Sections Affected. You should find a reference to any amendatory action. If the section as a whole has been removed, renumbered or placed under a totally different subject. The Federal Register search will also clarify when the change took place so the researcher can determine if the old section or new one is relevant to the question at hand.