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Administrative Law: Historical Federal Regulations

History of Federal Rulemaking

Federal Rulemaking Before 1936

Do not expect to find federal regulations before the first Federal Register was published on March 16, 1936. 

The government first began publishing federal regulations following a particularly embarrassing incident in which an oil company sued the federal government to overturn various oil industry regulations. After over two years of litigation, the case reached the U.S. Supreme Court, where it was finally noticed that the government had actually repealed some of the challenged regulations before the oil company filed the case. No one else had previously noticed this- not the attorneys for the oil company, not the lower federal judges and their clerks, and not even the government itself. Panama Refining Co. v. Ryan, 293 U.S. 388, 412-413 (1935).

In other words, before 1936, even the government itself could not track down its current regulations. You should not expect to be able to track them down over 80 years later. 

Federal Rulemaking After 1936

In March 16, 1936, agencies began publishing their proposed and final regulations in the Federal Register, a pamphlet published business daily. In 1938, agencies began publishing their current regulations by topic in the Code of Federal Regulations, updated each year. Complete historical sets of both the Federal Register and the Code of Federal Regulations have been scanned and are readily available online.

Finding Federal Regulations at a Specific Point in Time

If you need to know the text of a regulation at a specific point in time, it's easy! Complete scans of all historical copies of the Code of Federal Regulations are readily available online. You can easily browse to a specific regulation or search within a specific year's regulations for relevant topics.

Sometimes, you will see historical regulations cited to the Federal Register rather than to the Code of Federal Regulations. Additionally, there was a brief period between 1936 and 1938 when regulations were published by date in the Federal Register but not yet organized by topic into the Code of Federal Regulations.

You can access complete copies of the Federal Register, from its very first issue to the present at:

Compiling Federal Legislative Histories: The Basics

In some cases, you may need to compile a more comprehensive history of a regulation. Fortunately, all Federal Registers are readily available online, making it easy to trace the history of a regulation, using the following steps.

Access the Regulation in the CFR and Locate Its History or Credits

Access the regulation in the CFR on Lexis or Westlaw.

Scroll to the end of the regulation to find two sections:

  1. Statutory Authority/AUTHORITY: Lists the statutes authorizing the regulations and/or that the regulation is implementing.
  2. History/Credits: Lists each Federal Register entry that added or amended the section. 

Screencap of Statutory Authority and History section on Lexis

Screencap of Credits and Authority section on Westlaw

Access Each Potentially Relevant Federal Register

Go through the History/Credits section and click the links to access the Federal Registers that are potentially relevant to you. For example, if you know that the regulation impacting your client was passed some time in or after 2015, you can start with the most recent Federal Register citation and work backwards to 2015 or start with the first Federal Register citation from 2015 and work forwards, ignoring any amendments before 2015.

Skim to Identify the Relevant Federal Registers 

Skim the first few paragraphs of each potentially relevant Federal Register to see what the amendment did. Often, you'll find that many of the cited Federal Registers made only minor changes, such as fixing typos, or changed language that does not impact your client, and therefore do not require any further research.

Skim the Relevant Federal Registers to Identify Earlier Federal Registers 

Remember, regulations are passed through notice and comment: an initial Federal Register provides the notice of the regulation and instructions for commenting on it and a final Federal Register summarizes the comments and announces the adoption of the final regulation. In between, there may be multiple Federal Registers modifying the proposed regulation and requesting additional comments.

The History or Credits section only identifies the Federal Register adopting the final regulation so, after narrowing your research to only those Federal Registers that are relevant to you, skim each Federal Register for citations to the Federal Register that originally proposed the regulation and for any Federal Registers that modified the proposed regulation. 

Compiling Federal Regulatory Histories: Additional Materials

Check the Agency Website

It's common for agencies to post additional information about regulations on their website, either voluntarily or as part of their library of Freedom of Information Act (FOIA) requests. 

Often, the Federal Registers will provide you with links to relevant pages on the agency website. However, unless the Federal Register is very recent, it's common for the links they provide to no longer work. If this is the case, check for an archived version of the website by copying and pasting the link into the Internet Archive's Wayback Machine:

Check Regulations.gov

Regulations.gov is a website that is intended to provide a forum for the public to submit comments and for agencies to post comments they have received. Again, often the Federal Registers will provide you with a link or instructions for locating the relevant regulations.gov page. 

Regulations.gov can also be searched directly at:

However, be aware that many agencies are very slow to post comments received to Regulations.gov and do not post all of the comments. For example, the Centers for Medicare Medicaid Services (CMS) proposed regulations regarding Certain Preventive Services Under the Affordable Care Act (Docket ID: CMS-2012-0031) on February 6, 2013 but did not begin posting comments it received until May 1, 2013 and, as of January 22, 2019, has only posted 165,228 of the 472,082 comments it received. For full details, you may need to contact the agency. 

Contact the Agency

Sometimes, the only way to get the materials you want is to contact the agency directly. The Federal Registers will always include the contact information for the person responsible for providing information about and receiving comments on the regulation and will generally provide information on where and how the public can request files related to the regulation. For example, a Federal Register for the regulations regarding Certain Preventive Services Under the Affordable Care Act (79 Fed. Reg. 51118) provides contact information for four agency staff members and explains how to request access to view materials at the agency headquarters. 

Warning: If you are suing the agency or otherwise challenging the regulation, ask your supervising attorney or client and consider carefully before contacting the agency. Contacting the agency may tip them off to the lawsuit before you are ready.

Check the Office of Information and Regulatory Affairs (OIRA) Website

OIRA is responsible for supervising agency rulemaking and its website may provide relevant materials:

Search Law Reviews and Newspapers

Sometimes, you will be able to locate law review and newspaper articles written by those who opposed, supported, or were involved in the enactment or amendment of the regulation. For information on searching law reviews and newspapers, try the following guides: