Before a federal regulation can be made,
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 (USC) (statutes) or the Federal Code of Regulations (CFR).
There are two common ways in which the relationship between statutes and regulations affects legal analysis:
If you have found a statute, there may or may not be a related regulation. It depends on whether 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 enact.
Sometimes numerous regulations are published, 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.
Rule-making is the policy-making process for Executive and Independent agencies of the Federal government. Agencies use this process to develop and issue Rules (also referred to as “regulations”).
The process is governed by laws including but not limited to the Administrative Procedure Act (APA) (5 U.S.C. Chapter 5), Congressional Review Act, Paperwork Reduction Act, Regulatory Flexibility Act and can lead to a new Rule, an amendment to an existing Rule, or the repeal of an existing Rule. Executive Orders also establish principles and guidance for the rule-making process.
An agency cannot issue a Rule unless granted authority to do so by law.
1. Pre-Rule Stage - Before the rule-making process, an agency will evaluate possible alternative solutions to a rule-making and determine whether the benefits of the regulation justify the costs. Agencies typically submit for publication an "Advanced Notice of Proposed Rule-making" to the Federal Register (FR) for the public to view on-line and in the printed Federal Register. This notice allows the public the opportunity to comment on whether or not the rule-making should even be initiated.
2. Proposed Rule Stage - After an agency researches the issues and determines whether a new Rule is necessary, it may propose a regulation, also known as a Notice of Proposed Rule-making (NPRM). These NPRMs are published in the Federal Register and made publicly available in print and on-line, so that they are readily accessible to the public.
During this phase of the rule-making process, agencies accept public comments via Regulations.gov. Some agencies also accept comments by mail, fax, or email. Typically, an agency will allow 60 days for public comment. However, in some cases they provide either shorter or longer comment periods. An agency may receive no comments or thousands of comments or more. Some public comments contain one-sentence or one-paragraph comments, while others contain thousands of pages with detailed analysis, with supporting documents submitted as attachments. A rule-making docket (known on Regulations.gov as a Docket Folder) contains all of an agency's relevant rule-making materials including notices, supporting documents, studies and other references, and public comments.
3. Final Rule Stage - After public comments are received and the comment period is closed, the agency conducts a comment analysis. Then agencies decide whether to proceed with the rulemaking process or issue a new or modified proposal or in some cases withdraw the proposal.
Preparing a Final Rule. Any Final Rule must include a preamble and Rule text. The preamble includes a response to the significant, relevant issues raised in public comments and a statement providing the basis and the purpose of the Rule. Typically, agencies respond to all public comments in the preamble of the Final Rule or a withdrawn proposal. The Final Rule will also include how the rule will amend the Code of Federal Regulations (CFR).
Published Final Rule. The Final Rule is published in the Federal Register and made publicly available in the official print/pdf version and an unofficial version on-line at federalregister.gov. Final Rule do not become effective in less than 30 days of its publication in the FR, unless the rule grants an exemption, relieves a restriction, or for “good cause,” which includes such things as emergencies.
Federal rules and regulations are published first in the Federal Register - at least twice as a proposed rule and then as a final rule, and then they are published in the Code of Federal Regulations.
The Federal Register (FR) is published by the Office of the Federal Register, a division of the National Archives and Records Administration (NARA). The Federal Register is the official daily publication for rules, proposed rules, and notices of Federal agencies and organizations, as well as executive orders and other presidential documents, in compliance with the notice provisions of the Administrative Procedures Act,
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 it is designated a single volume number per year, although published daily.
The official version is published in print and on govinfo.gov in a PDF format.
An unofficial version is also published by the Office of Federal Register at federalregister.gov.. This unofficial, HTML (XML-based) format of the Federal Register overcomes the technical limitations of the official PDF format and demonstrates how an alternate format can effectively convey regulatory information to the public.
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. The rules are organized by agency and subject into titles in the Code of Federal Regulations (CFR), which are further subdivided into parts and sections.
The official version is then published both in print and online at govinfo.gov.
All the regulations created by a particular agency will be in the same title of the CFR. The CFR on govinfo is current with the published print version of the CFR. When the print editions are released, the online version is also made available. If a CFR Title or volume is not listed in the CFR browse, that volume has not yet been published.
The 50 subject matter titles contain one or more individual volumes, which are updated once each calendar year, on a staggered basis. The annual update cycle is as follows:
titles 1-16 are revised as of January 1
titles 17-27 are revised as of April 1
titles 28-41 are revised as of July 1
titles 42-50 are revised as of October 1
The 50 titles of regulations in the CFR generally track the 50 titles of statutes in the United States Code. Just as a statutory code title is divided into chapters and sections, the CFR titles are also divided into chapters, parts and sections. This can create confusion when researching in both regulations and statutes given their similar divisions and numbering. Always be careful to check whether you are in the Code of Federal Regulations (CFR) or the United States Code (USC. or U.S. Code).
In addition to the official print and online versions of the CFR, there is also an unofficial electronic version, eCFR,gov, which is discussed in the next units.
The Code of Federal Regulations (CFR) provides ways for researchers who find codified regulations to trace backward in the regulatory process to find:
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.
The "unless otherwise noted" in the Source note tells you that every section codified in Part 1980 was added to the CFR when the final rule was published at 80 FR 11880 on March 5, 2015, except that some sections may have been added to or amended by some other final rule published on some later date which is noted for that specific section.
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.
The Federal Register provides the effective date in the preamble to a final rule. Also included at the beginning of each final rule publication will be the information about what federal agency is responsible, and where the rule will be codified in the CFR. At the top of every official FR publication will be the Volume number, the page number and the date of the publication, Click to expand the image below.
Online subscription databases will usually note the effective date of a regulation, but may display it in varying locations.
Westlaw provides the effective date at the top of a regulation:
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.
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.