Free, Official, Federal Regulatory Research

This post originally appeared on the blog of the Case Western Reserve University Law Library.

In finding free, or very low cost, ways to conduct legal research one of the obstacles is often the unofficial status of freely available web-based tools. In other cases, even where the official, formal, “weight” of free (or low-cost) resources is equivalent to, say, much-prized unofficial resources like the annotated codes available in print or through Lexis or Westlaw, the effective cognitive authority and assumed merit (deservedly or not) of the resource is much lower.

In the case of Federal regulatory resources, however, the most official and formal research methods — hearkening back to those used for “old fashioned” print-bound regulatory research — are available, for free, online. There is a penalty in convenience, and there are drawbacks in terms of updating to which the wary researcher must be attentive. But the tools are there and they are used, in fact, very much in the fashion of print-based research into the Code of Federal Regulations, the Federal Register, and the other tools and tables that connect those resources together in response to a real research question.

Code of Federal Regulations

Your starting point is the Code of Federal Regulations. The CFR, as it is known, is the subject-ordered compilation of “rules,” or administrative regulatory law, from the executive-branch agencies of the federal government. Just as statutory codes, such as the United States Code represent a “codification,” or reorganization, of the individual enactments of a legislative body into a reconciled, coordinated, and subject-arranged collection of the current law under that body, the CFR represents a codification of the regulatory enactments of the administrative agencies of the federal government. One of the oddities of the CFR is its publication cycle: the CFR is replaced annually, but on a rotating schedule. One quarter of the titles, or broad subject divisions, are issued as through the current year as of each quarter. So when working from a CFR title, and attempting to update your research to comprise any regulations passed or changed since the codification of your title, you need to note if your title is issued as of January 1, April 1, July 1, or October 1 of the year. It is as if each title of the Code has its own “regulatory year” on which basis the CFR is issued.

FDSys, the Government Printing Office’s government information website, includes the CFR in several forms. In addition to an XML bulk-data release available to those building third-party research tools, the entire CFR Collection is available both as text and as PDF downloads. PDFs can be generated and downloaded for whole titles, but also at all levels of granularity, including Chapters, Sub-Chapters, Parts, and even sections (though I’m not sure that a PDF of an individual section would be of much use, in practice).

The PDF files may be convenient for some purposes. But their real merit is they provide at least some level of confirmation of authenticity — certainly as much as is relevant or meaningful to expect or require. These PDFs are “signed” with a digital certificate. This is as official and authentic a copy of the CFR as you will find.

There is no particularly effective tool on the FDSys platform to search across the text of the CFR. Full-text search across the entire FDSys collection is so ineffective as to be worthless for this purpose. Even if a viable search platform were provided, I’m not sure it would be needed. It would be nice if the index that accompanies the printed CFR volumes were included. It is a poor index, but is at least something. As it is, browsing the CFR using the “tree”/directory style navigation of the site is your best option. This is not nearly the handicap it might seem. The organization of the CFR actually lends itself extremely well to a browsing approach: it is arranged first by “title,” with the titles corresponding to very broad topics. Within the individual titles, chapters are grouped according to the responsible regulating agencies. On the whole, the result is a relatively logical, browse-ready, organization. That said, both indexes and full-text search are likely to be required at times for thorough regulatory research, but there are no good free online resources for this.

Updating

As we noted, the individual CFR titles are officially published as updated through a particular date in the year; with each title released as current through one of four dates through the year. What if, using the official (‘signed’ PDF available) CFR tools on FDSys, you wish to update your research into some regulation to include any changes since the most recent official date?

Again, reliance on the free official and quasi-official online tools leads us back to the techniques of the old, print-world, way of doing things. The ultimate tool for updating the most-recent-available Code of Federal Regulations would be to look through every subsequent issue of the Federal Register, which would have published any new final rules creating new regulations to be codified.

List of Sections Affected

But this process is accelerated by sets of tables, called the List of CFR Sections Affected, or, simply, List of Sections Affected. The LSA allows you to update from the CFR without having to actually look at every issue of the Federal Register. You don’t even need to look at each and every one of the monthly LSA tables dated after the most recent codification of the portion of the CFR with which you are concerned.

For instance, Title 49 of the CFR is an “October” title (codified current as through October 1, 2011) so you would need to find new matter from October, November, or December of 2011; and for January, February, March, or part of April of 2012. But the List of CFR Sections Affected documents for each month offer a major shortcut. Each month’s LSA includes references to new matter not just for that month, but all the way back to the last revision date for each CFR title:

At the end of each month the Office of the Federal Register publishes separately a List of CFR Sections Affected (LSA), which lists parts and sections affected by documents published since the revision date of each title.

So, for our title (with an October 1 date) revisions from the months listed above will (almost) all be consolidated into one LSA table. The exception is for any time since the effective date of the latest LSA pamphlet. At present that means April, but also March, since the March LSA was not yet on the FDSys website (as of April 16).

This is less painful than it sounds. LSA tables are, at least, simple to understand. After opening either the text or PDF file for the latest monthly LSA pamphlet, we will browse to Title 49, and see a list of any sections within that title that have been affected (i.e. by new regulation), since CFR codification, and the Federal Register page number of any regulatory actions that have caused them to change.

Federal Register

Your last updating step is the Federal Register itself. The Federal Register is a daily publication, and any day’s issue could hypothetically contain new rules from the agency or on the topic about which you are concerned. But rest easy. You won’t need to look at each day’s issue.

As with the CFR, the PDF versions of the Federal Register available from FDSys are digitally-signed and more generally-usable as official resources than are most sources for new regulatory material.

In every issue of the FR there is a sort of miniature LSA, summing up CFR parts affected not just in that day’s issue, but so far during the current month. For example, today is April 16th. As I write, today’s issue of the Federal Register is already up on FDSys. FDSys includes a PDF download of the whole issue, and also includes both text and pdf access to portions of the text. To get to the feature “CFR Parts Affected During April” I will need to open the PDF for the whole of today’s issue and scroll down to very near the end of the document. This table cross-references every Part of the CFR that has been affected by new regulatory activity so far this month with every page of the CFR that includes a rule that has caused that effect.

Recall that I mentioned that the separate March LSA “volume” was not yet on the FDSys website? No problem. I’ll cover March the same way I covered April. March 30th, a Friday, was the last business day of the month. The end of that “full-issue” PDF includes a version of “CFR Parts Affected During March” that will include the whole month.

Unofficial Shortcut – the eCFR

Working with the CFR (available in authenticated, signed, PDF from FDSys), and the similarly-signed PDFs from FDSys, is the most “official” way to work with regulatory material, when that is the foremost concern. On the other hand, the databases of the CFR available through services like Westlaw and Lexis, are ‘dynamically’ updated for a reason. Especially as the table-by-table process of updating using the LSA has become less familiar, a more “pre-composed” updated source for the Code is important. If you have access, use those from the commercial services. If you don’t, use the eCFR, an emphatically-unofficial but quite-useful near-to-real-time codification of federal regulations available online from the GPO.

A Valuable Middle-Way: the CFR on LII

The Legal Information Institute displays a version of the CFR (driven, one presumes, from the XML produced by GPO and shared via FDSys) that is not updated in the unofficial but dynamic manner of the Lexis, Westlaw, or eCFR versions; but instead does add very convenient notification tools (under the “Currency” and “Rulemaking” tabs accompanying each subdivision of the CFR in the LII display) identifying new Federal Register material relevant to that Part, Chapter, or Title. I think this is a great approach, and also applaud the use of bulk-data fed from government resources. Highly Recommended!

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