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LRAW Research Spring 2023

What Are Regulations?

A regulation is a "rule . . . having legal force, . . . issued by an administrative agency."
Regulation, Black's Law Dictionary (11th ed. 2019).

 

Before a federal regulation can be made,

  1. an administrative agency must first be created by Congress (by statute), and
  2. Congress must (by statute) empower the agency to make regulations on a specific topic.

After all of this statutory authority is in place, an agency can then make regulations or rules that are within the agency's area of expertise as defined by statute, and those regulations and rules will have the force of law.

For these reasons, you will find that the process of researching regulations will often require researching statutes as well.

When researching online, a statute created by Congress can look very similar to a regulation created by an agency, so be careful to distinguish whether you are looking at the United States Code (statutes) or the Federal Code of Regulations.

The terms rules and regulations are used interchangeably.

The Publication Process

Federal Register

  cover of Federal Register

In compliance with the notice provisions of the Administrative Procedures Act, federal agencies generally publish rules, proposed rules, and notices of the various Federal agencies and organizations in the Federal Register (FR), which is published here on the govinfo.gov site and in print.  Additionally executive orders and other presidential documents are published in the Federal Register.

The Federal Register is updated daily by 6 a.m. and published Monday through Friday. The Federal Register page numbers range in the ten-thousands because, although published daily, it is designated a single volume number per year.

Once the comment period, which varies, has passed, federal agencies publish their final regulations in the Federal Register.

The final rule includes:

  • a preamble (summary, effective date, purpose, response to comments);
  • the full text of the regulation;
  • the legal authority for issuing the rule; and
  • how the rule will amend the Code of Federal Regulations (CFR).
Example:

The initial publication of the regulation about procedures for a whistleblower to file a retaliation complaint under Sarbanes-Oxley was in the Federal Register at 76 FR 68093. The preamble starts at 76 FR 68084.

Notice that technically, this example was not a "proposed rule." Instead it was an "interim final rule." That means public comments were invited (just like for a proposed rule), but—unlike a proposed rule—the effective date was the same day the "interim final rule" was published for the first time in the Federal Register, before the public had a chance to comment. An agency will use an "interim final rule" instead of a "proposed rule" when there is a particular need to put a regulation into effect right away. In LRAW, we will focus on the more standard situation in which a "proposed rule" that does not go into effect right away is published first.

The final rule was published in the Federal Register at 80 FR 11880. The preamble to the final rule starts at 80 FR 11865.

 

The Federal Register can also be found at  https://www.federalregister.gov/ which also links to the official published documents ultimately found on the govinfo.gov site and in print.  Documents may be found here before they are found in the print volumes and even at govinfo.gov.

"This unofficial, HTML (XML-based) format of the Federal Register on FederalRegister.gov overcomes the technical limitations of the official PDF format and demonstrates how an alternate format can effectively convey regulatory information to the public."

 


Code of Federal Regulations

cover for Title 29 of the Code of Federal Regulations print edition

Once a final rule is published in the Federal Register, the Office of the Federal Register and the Government Publishing Office (GPO) process the new regulations to codify them, or organize them by agency and subject into titles, parts, and sections, in the Code of Federal Regulations (CFR), both online and in print.

All the regulations created by a particular agency will usually be in the same title of the CFR. The 50 titles of regulations in the CFR appear similar to the 50 titles of statutes in the United States Code. Similar to how a statutory code title is further divided into chapters and sections, the CFR titles are further divided into chapters, parts and sections. This is a potential pitfall when researching in both regulations and statutes given their similar divisions.

Be careful to look at the top of the page to check whether you are in the Code of Federal Regulations or the United States Code.

 

Example:
The regulation about procedures for a whistleblower to file a retaliation complaint under Sarbanes-Oxley was codified in the Code of Federal Regulations at 29 CFR § 1980.103.

 

In addition to the print and official online versions of the CFR, there is also an electronic unofficial version, eCFR,gov, which is further discussed in the next sections.

Authority & Source

The table of contents for 29 C.F.R. part 1980.  At the bottom of the table of contents two notes have been highlighted with red boxes. The first note reads, "AUTHORITY: 18 U.S.C. 1514A, as amended by the Dodd–Frank Wall Street Reform and Consumer Protection Act of 2010, Pub.L. 111–203 (July 21, 2010); Secretary of Labor's Order No. 01–2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012); Secretary of Labor's Order No. 2–2012 (Oct. 19, 2012), 77 FR 69378 (Nov. 16, 2012)."  Under the authority note is a second note which reads, "SOURCE: 80 FR 11880, March 5, 2015, unless otherwise noted."

The Code of Federal Regulations (CFR) provides ways for researchers who find codified regulations to trace backward in the regulatory process to find:

  1. a citation to the federal statute that provides statutory authority (also called enabling act or legislation) for an agency to write specific regulations, and
  2. a citation to the final rule in the Federal Register that is the source of the specific regulations.

For example, if a researcher found 29 CFR § 1980.103 in the Code of Federal Regulations, and then scrolled up to the beginning of Part 1980, they would see the table of contents at left which lists the authority and the source for this Part.

AUTHORITY: The authority note at the end of the table of contents for Part 1980 indicates that 18 USC 1514A (a federal statute that is part of the Sarbanes-Oxley Act) gave the agency the authority to make all the regulations in Part 1980, including section 1980.103.

The authority note also lists orders from the Secretary of Labor that were published in the Federal Register. This is because Congress authorized the Department of Labor to make regulations, and then the Secretary of Labor delegated authority to a specific agency within the department—the Occupational Safety and Heath Administration (OSHA)—to make these regulations.


SOURCE: The source note, also at the end of the table of contents, refers to Volume 80, page 11880 of the Federal Register (cited as 80 FR 11880) where the final rule was published on March 5, 2015. The sections of that final rule were later codified in this Part of the CFR.

 

"Unless otherwise noted" in the source note tells you that every section codified in Part 1980 was added to the CFR because it was in the final rule published at 80 FR 11880 on March 5, 2015, unless a specific section within Part 1980 has a note after that individual section indicating that it was added or amended by some other final rule published on some later date.Section 1980.105 of Title 29 CFR with dates of amendment highlighted

 

 

 

For example, § 1980.105 (within Part 1980) was amended in 2021. Thus there is a notation at the end of the section stating when it was amended after the original publication.

Effective Dates for Regulations

Some regulations are effective beginning with their date of publication as a final rule in the Federal Register, and some are effective weeks or even months later. The Federal Register will always give the effective date when it publishes a final regulation.


Anatomy of a Final Rule

The Federal Register provides the effective date in the preamble to a final rule. Click to expand the image below.

screenshot with callouts. Vol. 80 is volume number. Thursday, March 5, 2015 is publication date. 11865 is page #.  29 CFR Part 1980 is where this regulation will be codified. Procedures for the Handling of Retaliation Complaints Under Section 806 of the Sarbanes-Oxley Act of 2002, as Amended is title of regulation. AGENCY: Occupational Safety and Health Administration, Labor - agency making the regulation. ACTION: Final rule.  - this is a final rule. DATES: This final rule is effective on March 5, 2015. - effective date


Online databases will usually note the effective date of a regulation, but may display it in varying locations. 

Westlaw

Westlaw provides the effective date at the top of a regulation:

The top of a Westlaw screen for 29 CFR 1980.103 which shows the effective date is March 5, 2015.


Lexis

Lexis includes the effective date in the Notes after a regulation.

Instead of scrolling down, try clicking Notes on the navigation bar at the left to quickly jump down to "Notes" in the annotations below the regulation.

Lexis screen 29 CFR 1980.103 effective dates

Statute / Regulation Connection

There are two common ways in which the relationship between statutes and regulations affects legal analysis:

  1. Statutes provide important context for related regulations. Typically, statutes provide general goals and guidelines, and the related regulations specify the practical details. It's important to read related statutes and regulations together in order to find all the relevant rules.
  2. If an agency makes a regulation that is outside the bounds of its rulemaking authority, a court can find that the regulation does not have the force of law. Thus, finding and interpreting the statutory authority can be crucial.

Our whistleblower regulation is an example of a statute providing general guidelines, and a regulation specifying practical details.

Under the federal statute 18 U.S.C. § 1514A(b)(1)(A), any person alleging discharge or other discriminatory action under the whistleblower protections of the Sarbanes-Oxley Act must file a complaint with the Secretary of Labor. However, the statute doesn't specify how exactly to file a complaint with the Secretary of Labor.

A researcher would need to find the Department of Labor regulation codified at 29 C.F.R. § 1980.103(c) to learn that the complaint described in the statute should be filed at the Occupational Safety and Health Administration (OSHA) office in the employee's geographical area. (OSHA is an agency under the authority of the Secretary of Labor.)

If you have found a statute, there may or may not be a related regulation. It depends on whether the legislature has authorized an agency to make regulations on that topic or not. Even if an agency is authorized, it still depends on whether the agency has in fact made regulations on that topic. Sometimes agencies take years to get around to publishing regulations they're authorized to publish.

On the other hand, sometimes numerous regulations are published, possibly by more than one agency that Congress authorized. For example, at least two federal agencies are responsible for writing rules and regulations to implement and enforce the Sarbanes-Oxley Act. Section 7202(a) of the Sarbanes-Oxley Act authorizes the Securities and Exchange Commission (SEC) to "promulgate such rules and regulations, as may be necessary or appropriate in the public interest or for the protection of investors, and in furtherance of this Act." 15 U.S.C. § 7202(a) (2018). However, any person alleging discharge or other discriminatory action under the whistleblower protections of the Sarbanes-Oxley Act must file a complaint with the Secretary of Labor. 18 U.S.C. § 1514A(b)(1)(A).  Note that these two statutes are in different titles of the U.S. Code.

If you find a regulation, there is at least one related statute you will also need to be aware of - the statute that gave the agency the authority to make that regulation. There may be additional statutes or other resources which need to be read together, in order to put the regulation in proper context.

Enforcing Regulations

A federal agency can conduct hearings and issue decisions interpreting and enforcing its own regulations. These agency rulings may be reviewed by Administrative Law Judges (ALJs). Administrative Law Judge decisions are appealed to the federal court system. The exact procedures followed by a particular federal agency are governed by the federal legislation empowering that agency to promulgate regulations and by the federal Administrative Procedures Act.