Potentially Systemic KeyCite Error with Code of Federal Regulation

Posted on Law-Lib by Tom Gaylord, Law Librarian, Chicago-Kent College of Law:

I ran across this error with KeyCiting CFR provisions last week.  Apparently, and this was confirmed via a West Reference Atty, if a proposed rule does not become a final rule, KeyCite begins to tag it as a “Former Proposed Regulation”, even if it is still pending!

In this case, I was reviewing CDC quarantine regulations proposed on Nov. 30, 2005 (70 Fed. Reg. 71892).  The comment period, after an extension, ended on March 1, 2006.  Nothing has been done since then, but according to CDC’s website, it appears that they are still reviewing comments.  If you KeyCite the affected CFR provisions, such as 42 C.F.R. § 70.1, you see the proposed regs labeled as “Former Proposed Regulations” [note I’m not picking on Westlaw; Shepardizing 42 C.F.R. § 70.1 doesn’t get you anything at all!].

However, looking at the newly released Unified Agenda (dated April 30, 2007: http://www.gpoaccess.gov/ua/browse0407.html) one sees that the regs are still pending, with a final action date expected in July 2007 (72 Fed. Reg. 22504).

Thus, KeyCite is apparently relying simply upon an arbitrary passage of time and then mis-labelling proposed rules as formerly proposed, when what they SHOULD be doing is either, 1) checking pending regs against the Unified Agenda (which comes out each April and October), or 2) waiting for the proposing agency to issue a notice of withdrawal (note that in the course of investigating this, I found a notice of withdrawal from the Railroad Retirement Board (April 30, 2007) withdrawing proposed regs that had been pending since 1995!).

In short, unless and until Westlaw changes its practices, it is not necessarily a reliable resource for determining whether a proposed rule is still pending.

Slightly edited version republished here with Tom's permission. [JH]