Using the Federal Register to Understand Regulatory Issues

TASA ID: 383

Using the Federal Register to Understand Regulatory Issues

If you have ever worked a case that involved federal regulatory issues, this article is intended to make your life easier as you review and digest a typical federal regulation.

Just about every industry in the United States falls under specific regulations.  The federal agency that has jurisdiction over a particular industry will issue its rules and regulations in the Federal Register, which follows the United States administrative law.  In 2009, there were over 69,000 pages published in the Federal Register in the form of notices, i.e., advanced notice of rulemaking, notice of rulemaking, final rules, notice of meetings, etc.   My background is in pipeline safety at both the federal and state levels, so I will use the regulations relative to the pipeline industry as examples throughout this article. This information, however, could also apply to OHSA regulations and EPA regulations, just to name a few.

When you have a case that involves an issue related to a specific requirement of one of the numerous regulations, you may find it necessary to review and analyze the regulatory history related to that requirement.  You cannot simply read the language of the relevant regulation and fully understand the intent.  In the pipeline industry, pipeline system operators must follow specific regulations found in the Code of Federal Regulations (CFR), Title 49.  More specifically, for natural gas, the regulations are found in Title 49 CFR, Part 192, and for petroleum pipelines, Title 49 CFR, Part 195.

The federal agency responsible for pipeline safety is the Office of Pipeline Safety, which is part of the Pipeline and Hazardous Materials Safety Administration (PHMSA), located within the United States Department of Transportation.  The current pipeline safety regulations, as well as all Federal regulations in electronic format, may be found at  http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&tpl=%2Findex.tpl .

When a case involves a regulatory requirement one typically looks at the language of the specific regulation.  That, however, is only the starting place.  If you are unfamiliar with the subject matter of that specific requirement, you must determine the intent of the regulation to fully understand and apply its impact.  To find out what the intent is, you must go to the "Final Rule" that created or revised the specific regulation.  One way to do this is to go to the Federal Register.  Many previous Federal Registers can be found online at http://www.gpoaccess.gov/fr/index.html .  At this website, you will be able to quickly search through prior Federal Registers dating back to 1994.

As an example, look at the following regulation taken from Part 195.

§ 195.214   Welding procedures.

(a) Welding must be performed by a qualified welder in accordance with welding procedures qualified under Section 5 of API 1104 or Section IX of the ASME Boiler and Pressure Vessel Code (incorporated by reference, see §195.3) . The quality of the test welds used to qualify the welding procedure shall be determined by destructive testing.

(b) Each welding procedure must be recorded in detail, including the results of the qualifying tests. This record must be retained and followed whenever the procedure is used.

[Amdt. 195-38, 51 FR 20297, June 4, 1986, as amended at Amdt. 195-81, 69 FR 32897, June 14, 2004]

The last line of this regulation contains the critical information, "Amdt. 195-38, 51 FR 20297, June 4, 1986."  This means that the regulation was revised by Amendment 195-38.  The 195 indicates the amendment was of the petroleum pipeline regulations and was the 38^th revision as of that date.  The Federal Register citation is 51 FR 20297, which tells you that in Volume 51, for 1986, page 20,297 of the Register contains the final rule which revised this regulation.  In addition, you can also go to the June 4, 1986 copy of the Federal Register to locate this final rule. 

Also note that there is another reference to revisions made to this same regulation.  This regulation was again revised by Amdt. 195-81, 69 FR 32897, June 14, 2004.   This was the 81^st revision to Part 195, which was published in the Federal Register on June 14, 2004 on page 32,897.  This could be very critical if the scope of a case you are working on concerns action or circumstances that occurred at a time period where the requirements may differ from what is currently required.

The strongest advice I can give you as you review the regulation is NOT to look only at the language of the regulation itself.  In fact, if you are looking at previous revisions to a specific regulation, the last thing to look at is the language of the final regulation.  You should first go to the preamble material contained in the final rule.  This material will tell you why the revision was needed, what initiated the revision, the intent of DOT in making the revision, and the impact of the change on the industry.

The development of a regulation and/or revision to an existing regulation follows a specific rulemaking process.  The revision may start with an Advance Notice of Proposed Rulemaking (ANPRM) or more typically, a Notice of Proposed Rulemaking (NPRM).  The Federal Register will tell you which type of notice you are viewing.  The purpose of either one of these notices is to lay out the background and conditions that brought about the proposed revision.  There is usually a time period in which all affected or interested parties may submit comments.  It is very informative to look at the comments that have been submitted.  You can do this by going to http://www.regulations.gov/search/Regs/home.html#home .  These comments will help you gain further insight into the intent and effect of the revision to the regulation.  You may even find that your client may have submitted comments that could be beneficial to your case.  The information you will need to start your search can be found in the lead-in to the Federal Register notice.  The following is an example of a recent final rule to a pipeline issue.

The important information needed for a search is the Docket ID.  In this example, PHMSA-2007-27954 is the ID number.  I noted when I ran a trial on my links contained in this article that there were almost 200 separate comments and entries in this particular docket.  That could be a treasure trove of information for your case.

You must also be aware of the "effective date" of the final rule.  This information is found early in the body of the rule.  If this final rule is a revision of an existing regulation, you may need to go back and view the previous language, to identify the language in effect at the time that is relevant to your case.  The final rule will reference any previous activities in the rulemaking process, and it may be beneficial to follow this regulatory trail back to the initial regulation.

For a more in-depth study on using the Federal Register, you may go to the National Archives at http://www.archives.gov/federal-register/tutorial/index.html for a very good tutorial.

This article discusses issues of general interest and does not give any specific legal or business advice pertaining to any specific circumstances.  Before acting upon any of its information, you should obtain appropriate advice from a lawyer or other qualified professional.

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