This section of the guide is a short introduction to regulatory research. A more thorough how-to guide on administrative law research is available here.
Should you run into questions or concerns with your research, feel free to reach out to the librarian assigned to your faculty member for specialized advice. Please check this list to determine which librarian you should contact.
Regulations are a source of primary authority. Congress writes laws, but delegates authority to federal agencies to create rules and regulations that have the force of law. The President can also direct an agency to create regulations via executive order. The creation of regulations is called the "rulemaking process" and a simplified explanation will be outlined below.
The Federal Rulemaking Process
1. An agency is directed to create a rule either by Congress (called an enabling statute) or the President (via executive order). Agencies cannot exceed the authority granted to them by Congress or the President.
2. The agency drafts a proposed rule, which is published in the Federal Register. The Federal Register is like the daily newspaper of agency happenings and is published every weekday. Publication in the Federal Register serves to alert the public to the potential rule change.
3. Under the Administrative Procedures Act (APA), the agency must solicit comments from the public on the proposed rule for some period of time.
4. The agency must publish some form of written response to the public comments in the Federal Register.
5. The agency issues their final rule, which may or may not incorporate changes suggested from the public's comments. The final rule is published in the Federal Register.
6. All finalized rules are collected and published in the Code of Federal Regulations (C.F.R.).
Sources of Federal Regulations
There are two important sources for regulatory research: The Federal Register and the Code of Federal Regulations.
The Federal Register is a chronological publication that contains all proposed, interim, and final rules from federal agencies. The official version of the Federal Register is published in print. You can find an unofficial version online, for free, at https://www.federalregister.gov/. Commercial databases like Westlaw and Lexis also keep the Federal Register on their databases.
By citation.
If you have a citation to the C.F.R., you can search directly for that regulation using the citation on a database.
Through an annotated statute.
The best way to find regulations that pertain to your legal issue is through a reference in an annotated statute, like those on Westlaw or Lexis. When you are reading a statute on Westlaw, go to Citing References --> Regulations to see a list of associated regulations. On Lexis, scroll down on the page with the statute to Research References & Practice Aids to see the section(s) of the C.F.R. where regulations are codified. On Lexis, you can also click Shepardize this Document, select "Other Citing Sources" on the left-hand side, and then choose "Regulations."
Through a secondary source.
If you are in the beginnings of your research and using a secondary source, you may see references to relevant C.F.R. sections along with case law and statutes.
By subject or browsing.
Westlaw's C.F.R. has an index where you can search or browse for regulations by topic. To access the index, go to the C.F.R. page and select the index from the left-hand side menu. You can also browse or search directly within the C.F.R. on both Westlaw and Lexis, but be wary that this will not be the most efficient way to search for regulations.
Read the entire Part.
Regulations, unlike most statutes, are quite dense and detail-filled. You may have found one particular regulation that is on-point, but chances are that the other regulations in that Part are highly relevant as well (like the definitions section). When reading a regulation, always use the Table of Contents to read at least the other regulations in the same Part (and perhaps the larger Subchapter).
Check for the source and authority.
Much like statutes have legislative history, so too do regulations have regulatory history. This regulatory history can be useful for determining why an agency proposed a rule or used specific language in a regulation. The notice of proposed rulemaking, published in the Federal Register, will often contain a preamble section that includes background information and the agency's rationale for the rule; this preamble section is not included in the C.F.R.
The source and authority are important for tracing regulatory history.
Source refers to the original publication of the final rule in the Federal Register.
Authority refers to the enabling statute or executive order that gave the agency permission to create the rule. This citation will direct you either to the U.S.C. (if the authority is a statute) or the Federal Register (if the authority was an executive order). From there, you can begin to determine whether the agency exceeded the scope of authority when creating a rule.
Just like researchers update case law and statutes, so too must researchers update regulations. Updating regulations asks two related questions: (1) have there been any changes to the regulation since the database last updated their C.F.R.? (currency) and (2) have courts limited the application of the regulation in any way (good law)?
To update your regulation, use the following steps:
1. Look for a yellow or red signal on the regulation. If you do not see a signal on the specific regulation, look for a signal on any regulation in the same Part. When you see a signal, determine (1) why the signal was assigned and (2) whether the signal impacts your argument.
2. Look for how current the C.F.R. is on the database. This is typically within the last week or so. Because regulations change faster than statutes, it is important to check that no changes or proposed changes have been introduced during the time gap. The easiest way to check is to use the C.F.R. Parts Affected tool from GovInfo. Enter the date range starting with the date the database last updated their C.F.R. and then look for changes in your Title and Part.