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Environmental Law : Federal Regulations

Introduction to Regulations

The federal legislature delegates the power to promulgate regulations to administrative agencies.  Administrative law (also known as regulatory law) is the body of law created by those agencies.  There are two main sources for federal administrative regulations: 

  • Code of Federal Regulations (CFR) 
    Final regulations are arranged by subject in the CFR.  The CFR is revised annually and is organized into 50 titles which represent broad subject areas.  Title 40 (Protection of Environment) of the CFR is where you will find most regulations pertaining to environmental law.  But some regulations that affect Environmental Law may be found elsewhere in the CFR; for example regulations concerning public lands are contained in Title 43 of the CFR. 
    CFR via WestlawNext (password required)

  • Federal Register (FR)
    Regulations are published chronologically in the Federal Register, a daily publication.  Regulations are first published as a proposed rule.  A thirty-day comment period on the proposed regulation follows.  At the conclusion of the comment period the regulation may be revised and re-isssued for additional comment or issued in its final state.  Proposed, temporary, and final regulations all appear for the first time in the Federal Register
    FR via WestlawNext (password required)

What the Federal Register contains:

Each print issue of the Federal Register contains the following:

Contents and Preliminary Pages:  Alphabetical listing by agency name of all documents in the issue; the documents are arranged by type:  rules, proposed rules, and notices.

CFR. Parts Affected in the Issue: Parts affected by the rules and proposed rules in the issue are listed along with the page numbers where relevant documents begin.

Final Rules & Regulations:  Each document has a heading that includes the name of the issuing agency, the CFR title and parts affected, and a brief description of the specific subject of the document; also contains interim rules that are issued without prior notice and are effective immediately; may also include documents that have no regulatory text and do not amend the CFR, but either affect the agency's handling of its regulations or are of continuing interest to the public in dealing with an agency such as general policy statements and interpretations of agency regulations.

Proposed Rules:  Notices of proposed rules, requests for public comment, and documents relating to previously published proposed rules.

Notices:  Announcements of hearings and investigations, committee meetings, agency decisions and rulings, issuances or revocation of licenses, filing of petitions and applications, and notices of meetings as required to be published under the Government in the Sunshine Act.

Presidential Documents: Proclamations and executive orders; compiled annually in title 3 of the CFR.

Reader Aids:  "Federal Register Pages and Dates," a table of the inclusive page numbers and corresponding dates for the current month's Federal Register and CFR Parts Affected During the Current Month, a cumulative list of CFR parts affected by rules and poposed rules published in the Federal Register during the current month

Regulatory History:  The Federal Register also contains the history of the rule-making process for a regulation.  The customary process for the promulgation of a regulation includes the publication of a notice of intent to produce regulations, proposed regulations, comments, and the final rules.  Explanations of intent and summaries of comments received during the comment period as well as how the comments affected the regulations are also included in the Federal Register under the heading "Supplementary Information."

What the CFR contains:

Cover and title page: Title topic and number, the parts contained in the pamphlet, and the revision date of the pamphlet.

Table of Contents: Chapters and finding aids contained in the pamphlet

This Title: Brief description of how the titles are organized

Table of Contents: At the beginning of each part showing the sections contained in the part

Authority Note: Provides a citation for the statutory or executive authority under which the regulations in the part were promulgated; located at  the start of each part

Source Note: In the front of each part providing the Federal Register cite and date where the part was last published in full (a separate source note will follow a section if it is based on a different authority or was added or amended later)

Cross Reference Note: Citations to related C.F.R. parts and sections

Finding Aids: At the end of the pamphlet which includes: Material Approved for Incorporation by Reference; Table of C.F.R. Titles and Chapters; Alphabetical List of Agencies Appearing in the C.F.R.; Re-designation Tables; List of C.F.R. Sections Affected

Regulatory Tracking

Prerule Stage
Rules often appear for the first time in the government publication Unified Agenda.  Each edition of the Unified Agenda includes regulatory agendas from all Federal entities that currently have regulations under development or review.  Fall editions of the Unified Agenda include The Regulatory Plan, which presents agency statements of regulatory priorities and additional information about the most significant regulatory activities planned for the coming year.

When the Unified Agenda lists a rule in the prerule stage, the rule will be assigned a regulation identifier number (RIN).  The RIN can be used to search for more information in the Federal Register.  However it is possible the agency will make no further information on the rule available until the agency published the notice of proposed rulemaking (NPRM) in the Federal Register.

From 1983-2007 the entire Unified Agenda was published twice a year in the Federal Register, usually in April and October.  Beginning in Fall 2007 the Unified Agenda became a primarily web based publication.  The Federal Register version of the Unified Agenda now contains only the rules that are likely to have significant economic impact as well as rules required for inclusion by statute. 

Proposed Rule Stage
Before agencies publish NPRMs, the submit significant rules to the White House for review.  After the White House completes its review process, the agency will publsh a NPRM in the Federal Register.  The NPRM should contain the information essential to understand the potential impact of the proposed rule.  The NPRM usually announces the beginning and end of a notice and comment period for the rule.

A number of sources allow users to track pending agency regulations, and simplify the comment process.  Regulations.Gov is the federal government's centralized site for online access to proposed and final regulations, and submission and review of public comments. 

Final Rule Stage
The final work on a regulation is usually the publication of the final rule in the Federal Register.  This notifies the public the agency as completed its regulatory action.  The notice of a final rulemaking includes the final text of the rule and its anticipated effective date.

Regulatory History

Step One: Find the regulation
 
The first step in creating a regulatory history is finding the regulation.  The Code of Federal Regulations is the codification of federal regulations.  Before publication in the CFR, a federal regulation will first be published in the Federal Register which contains most routine publications and public notices of government agencies.
 
The CFR is available in a variety of sources.  It is found in both Lexis Advance and WestlawNext, Heinonline, in print, and at a number of Internet websites.
 
Step Two: Locate the "Source" note
 
Once you have found the passage in the CFR from your citation look for the "Source" note.  Normally, this is at the beginning of the CFR part or in brackets after the relevant section.  This source notes gives the citation to the Federal Register which gives the history of the regulation.
 
Step Three: Note the rulemaking docket number
 
In the Federal Register there should be a citation in the beginning of the section which gives a docket number of the agency involved.  This should look something like "[MD Docket No. 96-186; FCC 97-215]" or "[CGD 90-071a]" with the agency's abbreviation proceeding the docket number.  Other documents such as an Environment Impact Statement or Economic Analyses may be included in the agency's docket.   To acquire these materials, go to the corresponding agency's website to see if they make this information available.  Not all regulatory agencies make their dockets available through their websites, and may charge fees when requesting this information directly.
 
Step Four: Locate agency's docket and its associated materials
 
Once you have the agency's docket number you can then begin to search for these materials.  As mentioned previously, some agencies host these documents on their websites and others do not.  Also, an agency may be required through the FOIA (Freedom of Information Act) to provide these documents, however, they are not obligated to provide them at no cost.
 
If you are dealing with an older regulation, one without contact information, or the contact information is out of date please contact a reference librarian.  If may be necessary to call the respective agency to get these documents.