A few volumes of the CFR at a law
library (titles 12-26).
The
Code of Federal Regulations (CFR) is the
codification of the general and permanent rules and regulations
(sometimes called
administrative law)
published in the
Federal
Register by the executive departments and agencies of the
Federal
Government of the United States.
The CFR is published
by the Office of the
Federal Register, an agency of the National Archives and Records
Administration
(NARA).
The CFR is divided into 50 titles that represent broad areas
subject to Federal regulation.
Background
Administrative law exists because the
United States Congress often
grant broad authority to
executive branch agencies to
interpret the statutes in the
United
States Code (and in uncodified statutes) which the agencies are
entrusted with enforcing. Congress may be too busy, congested, or
gridlocked to micromanage the
jurisdiction of those agencies by writing statutes that cover every
possible detail, or Congress may determine that the technical
specialists at the agency are best equipped to develop detailed
applications of statutes to particular fact patterns as they
arise.
Under the
Administrative
Procedure Act, the agencies are permitted to
promulgate detailed rules and regulations
through a public "
rulemaking" process
where the public is allowed to comment, known as public
information. After a period of time, the rules and regulations are
usually published in the
Federal
Register.
Effect of administrative law
The regulations are treated by the
courts as
being as legally binding as
statutory
law, provided the regulations are a reasonable interpretation
of the underlying
statutes.
This "reasonable
interpretation" test or Chevron doctrine was articulated by
the U.S.
Supreme Court in a unanimous decision (6 voting, 3 recused)
involving a challenge to new Clean Air
Act regulations promulgated by the Reagan administration in
1981. See Chevron
U.S.A., Inc. v. Natural
Resources Defense Council, Inc.
For example, if Congress passed a
law that
simply stated that there are not to be "excessive" levels of
mercury in any significant body of
water in the United States (but defined things no further), an
entity designated, as part of the law, to enforce it (probably the
United
States Environmental Protection Agency (EPA)) could define in a
scientific way what an excessive level of mercury is, as well as
what constitutes a significant body of water. The Agency's
definitions and its plan of enforcement for what Congress intended
(along with listed
penalties for
violation coming from Congress unless
Congress specified otherwise) will all go into the CFR.
Also, enabling legislation can be passed by Congress which gives a
federal non-Congressional entity wide latitude in creating rules
(law of bases). For example, the EPA could be designated by
Congress to pass rules "that control harmful
pollutants"; the Agency could then pass broad
rules (including definitions and enforcement provisions), in the
absence of existing specific laws, to control
lead emissions,
radon emissions,
pesticide emissions, and so forth. Such
rules, including any definitions and enforcement provisions created
by Congress or the Agency, will all go into the CFR.
It is important to understand that the CFR itself is written by
lawyers for interpretation by lawyers and judges, and like
statutes, must be carefully drafted in highly technical language to
have effective broad application, yet limit the availability of
loopholes. Unfortunately, the vast majority
of employees of the federal government are not lawyers, and it
would ask too much to force them to directly read, interpret, and
apply the convoluted content of the CFR on a daily basis.
Therefore, nearly all federal agencies have in-house counsel draft
one or more internal manuals in
plain
English which set out daily internal operating procedures in
very simple language that any layperson can follow. While such
manuals do not really have the force of law, they are often the law
as far as most employees and customers of such agencies are
concerned, unless and until a dissatisfied customer of an agency
appeals to a supervisor who does understand the CFR and the U.S.C.
(or eventually sues the agency in court).
Oddly, despite the informality of such manuals, the U.S. Supreme
Court has occasionally cited them as authority when confronted with
situations not precisely addressed by the U.S.C. or the CFR.
Publication of administrative law
The rules and regulations are first promulgated or published in the
Federal Register. Each is given a CFR citation, such as 42
CFR 260.11(a)(1), that can be cited immediately, without waiting
for a page number from the physical copy. The aforementioned
citation would be read, "title 42, part 260, section 11, paragraph
(a)(1)."
NARA also keeps an online version of the CFR, the e-CFR, that is
normally updated two days after changes to the regulations, that
have been published in the
Federal Register, become
effective.
While new regulations are continually becoming effective, the
printed volumes of the CFR are issued once each calendar year, on
this schedule:
List of regulation titles
Code of Federal Regulations, seen at
the Mid-Manhattan Library.
Editions of Title 3, on the President, are kept on
archive.
Notice that for the first year of each new presidency, the
volume is thicker.
Notes
- 467 U.S. 837 (1984).
- See, e.g., Wash. State Dept of Soc. & Health Servs. v.
Guardianship Estate of Keffeler, (citing to Social Security
Administration's Programs Operations Manual
System).
External links
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