Properly Promulgated
Regulations...
Properly Promulgated
Regulations have the FULL FORCE and EFFECT of LAW.
Cornell Law School says:
1. Federal Regulations
in General
Introduction
Federal Regulations are the
primary means by which
federal agencies exercise their statutory authority to carry
out the federal government’s regulatory intentions. It is
beyond the ability of Congress to develop expertise in all
the many and varied areas subject to federal oversight.
Instead, Congress
enacts enabling laws that set parameters
for action and agencies fill in the details of their
enforcement and licensing
duties by
promulgating rules or
regulations. [Rules and
regulations are interchangeable
terms.] Agency rule making has occasionally been challenged
as an unconstitutional delegation of legislative authority,
but courts have upheld the agency system. TODAY
REGULATIONS
ARE CONSIDERED PRIMARY SOURCES OF LAW WITH THE FULL FORCE AND EFFECT OF
LAW.
.
.
.
Publication
in the Federal Register is constructive notice to
all persons affected by the regulations.
Although the Federal
Register took care of notifying the
government and people of changes and additions to federal
regulations, the current regulations in force were not
codified. Congress amended
the Federal Register Act in 1937
to require codification and subject access to the regulations
through publication in the Code of Federal
Regulations (CFR).
The first CFR was published in 1939.
The Administrative
Procedures Act (APA) of 1946 set forth the
process for making regulations. The APA required the
publication in the Federal Register of all proposed rule
changes and a period for public comment, allowing citizens
greater accessibility and participation in the process.
2. The Federal Register
What is it?
The Federal Register
is the official
publication where all
proposed and final
regulations having general applicability
and legal effect must be published.
The Federal
Register
includes not only the
text of the proposed, new, or amended regulation,
but also the agency’s explanation of why a new
regulation or change to an existing regulation is needed,
public comments on the proposal, and the agency’s responses.
.
.
.
4. The Code of Federal
Regulations
What is it?
The
Code of Federal
Regulations (CFR) is a codification of FINAL REGULATIONS NOW IN FORCE that have been published in
the Federal Register by
the agencies and departments of the
federal government. The CFR provides
a similar subject
arrangement for regulations as the United States Code
provides for public laws. The CFR and U.S.
Code each have 50
Titles, but the titles are not directly correlated.
Cite |
Indiana University School
of Law says:
REGULATIONS
IN GENERAL
Statutes and court
decisions are primary sources of law
familiar to most law library patrons. Administrative
REGULATIONS may be less familiar to researchers, but
THEY TOO CONSTITUTE
A PRIMARY SOURCE.
While statutes are
enacted by a legislature, regulations are
issued by administrative agencies (e.g., the Federal Trade
Commission), usually acting under delegated legislative
authority.
The legislature will lay
out general law and policy in the
statute, and the administrative
agency EFFECTS DETAILED IMPLEMENTATION of this law and policy THROUGH
THE ISSUANCE OF RULES
AND REGULATIONS.
Because REGULATIONS
are generally BINDING
ON ALL PERSONS and because they exist in many fields, it is
often vitally
important to locate relevant regulations as well as the more
usual statutes and court decisions.
FEDERAL REGULATIONS
To be EFFECTIVE
AS LAW, federal
REGULATIONS must first be
published in the Federal Register (F.R.), a daily newspaper
which publishes proposed regulations, new regulations taking
effect, notices, presidential documents, notices of Sunshine
Act meetings, and related material.
Each year, the F.R.
appears as hundreds of non-cumulating
issues containing new regulations, amendments to existing
regulations, and material that may repeal older regulations.
Therefore, most
researchers will need access to a codified
version of the currently-in-force
regulations; that is, the Code of Federal
Regulations (C.F.R.). Thus, in the area of regulations,
the Federal
Register and the Code of Federal
Regulations relate to each other in the same manner as do the
Statutes-at-Large and the U.S. Code in the area of
legislation.
THE CODE OF FEDERAL
REGULATIONS
The C.F.R. is
divided into 50 titles (i.e., subjects),
somewhat like (but not the same as) the 50 titles of the U.S.
Code. Only one-quarter of the C.F.R. IS UPDATED in any
quarter of the year...
Cite |
[Code
of Federal Regulations]
[Title 26, Volume 20]
[Revised as of April 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 26CFR601.702]
[Page 114-137]
TITLE 26--INTERNAL REVENUE
CHAPTER I--INTERNAL REVENUE SERVICE, DEPARTMENT OF
THE TREASURY
(CONTINUED)
PART 601_STATEMENT OF PROCEDURAL RULES--Table of Contents
Subpart G_Records (Note)
Sec. 601.702 Publication, public inspection, and specific
requests for records.
(a) Publication in the
Federal Register--
(1) Requirement.
(i) Subject to the application of the exemptions and
exclusions described in the Freedom of Information
Act, 5 U.S.C. 552(b) and (c), and subject to the
limitations provided in paragraph (a)(2) of this
section, the IRS is required
under 5 U.S.C.
552(a)(1), to state separately and publish currently
in the Federal Register for the guidance of the
public the following information--
(C) Rules
of procedure, descriptions of forms
available or the places at which forms may be
obtained, and instructions as to the scope
and contents of all papers, reports, or
examinations;
(D) Substantive rules of general
applicability adopted as authorized by law,
and statements of general policy or
interpretations of general applicability
formulated and adopted by the IRS; and
(E) Each amendment, revision, or repeal of
matters referred to in paragraphs (a)(1)(i)(A)
through (D) of this section.
(ii) Pursuant to the foregoing requirements, the Commissioner
publishes in the Federal Register from time to time a
statement, which is not codified in this chapter, on the
organization and functions of the IRS, and such amendments as
are needed to keep the statement on a current basis. In
addition, there are published in the Federal Register
the rules set forth in this part 601 (Statement of Procedural
Rules), such as those in paragraph E of this section,
relating to conference and practice requirements of the IRS;
the regulations in part 301 of this chapter (Procedure and
Administration Regulations); and the various substantive
regulations under the Internal Revenue Code of 1986, such as the regulations in part 1
of this chapter (Income Tax
Regulations), in part 20 of this chapter (Estate Tax
Regulations), and in part 31 of this chapter (Employment Tax
Regulations).
(2) Limitations--
(i) Incorporation by reference in the Federal
Register. Matter which is reasonably available to the
class of persons affected thereby, whether in a
private or public publication, shall be deemed
published in the Federal Register for purposes of
paragraph (a)(1) of this section when it is
incorporated by reference therein with the approval
of the Director of the Office of the Federal Register.
The matter which is incorporated by reference must be
set forth in the private or public publication
substantially in its entirety and not merely
summarized or printed as a synopsis. Matter, the
location and scope of which are familiar to only a
few persons having a special working knowledge of the
activities of the IRS, may not be incorporated in the
Federal Register by reference. Matter may be
incorporated by reference in the Federal Register
only pursuant to the provisions of 5 U.S.C. 552(a)(1)
and 1 CFR part 20.
(ii) Effect of
failure to publish. Except to the
extent that a person has actual and timely notice of
the terms of any matter referred to in
paragraph
(a)(1) of this section which is
required to be
published in the Federal Register, such person is not
required in any manner to resort to, or be adversely
affected by, such matter if it is not so published or
is not incorporated by reference therein pursuant to
paragraph (a)(2)(i) of this section. Thus,
for
example, any such matter
which imposes an obligation
and which is not so published
or incorporated by
reference shall not
adversely change or affect a
person's rights.
|
Conversely, if it is
published in the Federal Register, it is notice to all
persons that something is required of them.
TITLE
44 - PUBLIC PRINTING AND DOCUMENTS
CHAPTER 15 - FEDERAL REGISTER AND CODE OF FEDERAL REGULATIONS
Sec. 1501. Definitions
-STATUTE-
As used in this chapter, unless the context otherwise
requires - ''document'' means a
Presidential proclamation or
Executive order and an order, REGULATION,
RULE, certificate,
code of fair competition, license, notice, or similar
instrument, issued, prescribed, or promulgated by a Federal
agency;
''Federal agency'' or ''agency'' means the President of
the United States, or an executive
department, independent
board, establishment, bureau, agency, institution,
commission, or separate office of the administrative branch
of the Government of the United States but not the
legislative or judicial branches of the Government;
''person'' means an individual, partnership, association,
or corporation; and ''National Archives of the United
States'' has the same meaning as in section 2901(11) of this
title. |
DOCUMENT means REGULATION,
RULE.
TITLE
44 - PUBLIC PRINTING AND DOCUMENTS
CHAPTER 15 - FEDERAL REGISTER AND CODE OF FEDERAL REGULATIONS
Sec. 1505. Documents to be
published in Federal Register
-STATUTE-
(a) Proclamations and Executive Orders; Documents Having
General Applicability and Legal Effect; Documents Required To
Be Published by Congress. There shall
be published in the
Federal Register -
(1) Presidential proclamations and Executive orders,
except those not having general applicability and
legal effect or effective only against Federal
agencies or persons in their capacity as officers,
agents, or employees thereof;
(2) documents or classes of documents that the
President may determine from time to time have
general applicability and legal effect; and
(3) documents or classes of documents
that may be
required so to be published by Act of Congress.
For the purposes of this chapter every
document or order
which prescribes a penalty has general applicability and
legal effect. |
DOCUMENT means REGULATION,
RULE. Thus the above can be read as if it were written thus:
TITLE 44 - PUBLIC PRINTING
AND DOCUMENTS
CHAPTER 15 - FEDERAL REGISTER AND CODE OF FEDERAL REGULATIONS
Sec. 1505. REGULATIONs to be
published in Federal Register
(a) Proclamations and Executive Orders; REGULATIONs Having
General Applicability and Legal Effect; REGULATIONs Required
To Be Published by Congress. There
shall be published in the
Federal Register -
(1) Presidential proclamations and Executive orders,
except those not having general applicability and
legal effect or effective only against Federal
agencies or persons in their capacity as officers,
agents, or employees thereof;
(3) REGULATIONs or classes of REGULATIONs that may be
required so to be published by Act of Congress.
For the purposes of this chapter every
REGULATION or order
which prescribes a penalty has general applicability and
legal effect. |
The publication of a
regulation in the Federal Register makes it binding with the full force
and effect of law.
TITLE
44 - PUBLIC PRINTING AND DOCUMENTS
CHAPTER 15 - FEDERAL REGISTER AND CODE OF FEDERAL REGULATIONS
Sec. 1507. Filing document as
constructive notice; publication
in Federal
Register as presumption of validity;
judicial notice; citation
-STATUTE-
A document required by section
1505(a) of this title to be
published in the Federal Register is not valid as against a
person who has not had actual knowledge of it until the
duplicate originals or certified copies of the document have
been filed with the Office of the Federal Register and a copy
made available for public inspection as provided by section
1503 of this title. Unless otherwise
specifically provided by
statute, filing of a document, required or authorized to be
published by section 1505 of this title, except in cases
where notice by publication is insufficient in law, is
sufficient to give notice of the contents of the document to
a person subject to or affected by it. The publication in
the Federal Register of a document creates a rebuttable
presumption -
(1) that it was duly issued,
prescribed, or
promulgated;
(2) that it was filed with the Office of the Federal
Register and made available for public inspection at
the day and hour stated in the printed notation;
(3) that the copy contained in the Federal Register
is a true copy of the original; and
(4) that all requirements of this chapter and the
regulations prescribed under it relative to the
document have been complied with.
The contents of the
Federal Register shall be judicially
noticed and without prejudice to any other mode of citation,
may be cited by volume and page number.
|
And again, because of the
definition statute, the above could be read as if it were written thus:
TITLE 44 - PUBLIC PRINTING
AND DOCUMENTS
CHAPTER 15 - FEDERAL REGISTER AND CODE OF FEDERAL REGULATIONS
Sec. 1507. Filing REGULATION as
constructive notice; publication
in Federal
Register as presumption of validity;
judicial notice; citation
A REGULATION required by section 1505(a) of this title
to be
published in the Federal Register is not valid as against a
person who has not had actual knowledge of it until the
duplicate originals or certified copies of the REGULATION
have
been filed with the Office of the Federal Register and a copy
made available for public inspection as provided by section
1503 of this title. Unless otherwise
specifically provided by
statute, filing of a REGULATION, required or authorized to be
published by section 1505 of this title, except in cases
where notice by publication is insufficient in law, is
sufficient to give notice of the contents of the REGULATION to
a person subject to or affected by it. The publication in
the Federal Register of a REGULATION creates a rebuttable
presumption - |
Once that regulation is
printed in the federal register,
I am REQUIRED
to follow it AS IF IT WERE LAW.
Moving on to the currency
and accuracy of the regulations...
TITLE
44 - PUBLIC PRINTING AND DOCUMENTS
CHAPTER 15 - FEDERAL REGISTER AND CODE OF FEDERAL REGULATIONS
Sec. 1510. Code of
Federal Regulations
-STATUTE-
(a) The Administrative Committee of the Federal Register,
with the approval of the President, may require, from time to
time as it considers necessary, the preparation and
publication in special or supplemental editions of the
Federal Register of complete codifications of the documents
of each agency of the Government having general applicability
and legal effect, issued or promulgated by the agency by
publication in the Federal Register or by filing with the
Administrative Committee, and are relied upon by the agency
as authority for, or are invoked or used by it in the
discharge of, its activities or functions, and are in effect
as to facts arising on or after dates specified by the
Administrative Committee.
(b) A codification published under
subsection (a) of this
section shall be printed and bound in permanent form and
shall be designated as the ''Code of
Federal Regulations.''
The Administrative Committee shall regulate the binding of
the printed codifications into separate books with a view to
practical usefulness and economical manufacture. Each book
shall contain an explanation of its coverage and other aids
to users that the Administrative Committee may require. A
general index to the entire Code of Federal Regulations shall
be separately printed and bound.
(c) The Administrative Committee
SHALL REGULATE THE
supplementation and the collation and REPUBLICATION of the
PRINTED CODIFICATIONS with a view to KEEPING the CODE
of
FEDERAL REGULATIONS as CURRENT AS PRACTICABLE.
EACH BOOK
SHALL BE either supplemented or collated and REPUBLISHED AT
LEAST ONCE EACH calendar YEAR.
(d) The Office of the Federal Register shall prepare and
publish the codifications, supplements, collations, and
indexes authorized by this section.
(e) The codified documents of the
several agencies published
in the supplemental edition of the Federal Register under
this section, as amended by documents subsequently filed with
the Office and published in the daily issues of the Federal
Register shall be prima facie
evidence of the text of the
documents and of the
fact that they are in effect on and
after the date of publication.
(f) The Administrative Committee shall prescribe, with
the approval of the President, regulations for carrying out
this section.
(g) This section does not require codification of the text
of Presidential documents published and periodically compiled
in supplements to Title 3 of the Code of Federal Regulations. |
Imagine that... The agencies
are required to handle their promulgated CFR's once per year, and keep
them up to date...
The regulations as promulgated, are specifically subject to
Congressional review. And if Congress does not deal with them, they are
considered.... Well, read the statute for yourselves...
First, let us read the definitions:
TITLE
5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 8 - CONGRESSIONAL REVIEW OF AGENCY RULEMAKING
Sec. 804. Definitions
-STATUTE-
For purposes of this chapter -
(1) The term ''Federal agency''
means any agency as
that term is defined in section 551(1).
(2) The term ''major rule'' means any rule that the
Administrator of the Office of Information and
Regulatory Affairs of the Office of Management and
Budget finds has resulted in or is likely to result
in-
(A) an annual effect on the economy of
$100,000,000 or more;
(B) a major increase in costs or prices for
consumers, individual industries, Federal,
State, or local government agencies, or
geographic regions; or
(C) significant adverse effects on
competition, employment, investment,
productivity, innovation, or on the ability
of United States-based enterprises to compete
with foreign-based enterprises in domestic
and export markets.
The term does not include any rule promulgated under
the Telecommunications Act of 1996 and the amendments
made by that Act.
(3) The term ''rule'' has the meaning given such term
in section 551, except that such term does not
include -
(A) any rule of particular applicability,
including a rule that approves or prescribes
for the future rates, wages, prices,
services, or allowances therefor, corporate
or financial structures, reorganizations,
mergers, or acquisitions thereof, or
accounting practices or disclosures bearing
on any of the foregoing;
(B) any rule relating to agency management or
personnel; or
(C) any rule of agency organization,
procedure, or practice that does not
substantially affect the rights or
obligations of non-agency parties.
|
What are they hiding when
they "borrow" definitions. Let's see what 551 says about "Federal
Agency" and "rule".
TITLE
5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER II - ADMINISTRATIVE PROCEDURE
Sec. 551. Definitions
-STATUTE-
For the purpose of this subchapter -
(1) ''agency'' means each authority of the Government
of the United States, whether or not it is within or
subject to review by another agency, but does not
include -
(A) the Congress;
(B) the courts of the United States;
(C) the governments of the territories or
possessions of the United States;
(D) the government of the District of
Columbia; or except as to the requirements of
section 552 of this title -
(E) agencies composed of representatives of
the parties or of representatives of
organizations of the parties to the
disputes determined by them;
(F) courts martial and military commissions;
(G) military authority exercised in the field
in time of war or in occupied territory; or
(H) functions conferred by sections 1738,
1739, 1743, and 1744 of title 12; chapter 2
of title 41; subchapter II of chapter 471 of
title 49; or sections 1884, 1891-1902, and
former section 1641(b)(2), of title 50,
appendix;
(4) ''rule'' means the whole or a part of an agency
statement of general or particular applicability and
future effect designed to implement, interpret, or
prescribe law or policy or describing the
organization, procedure, or practice requirements of
an agency and includes the approval or prescription
for the future of rates, wages, corporate or
financial structures or reorganizations thereof,
prices, facilities, appliances, services or
allowances therefor or of valuations, costs, or
accounting, or practices bearing on any of the
foregoing;
(5) ''rule making'' means agency process for
formulating, amending, or repealing a rule; |
With the definitions thus
covered, I can go back to the previous definitions and substitute in
the equates.
TITLE 5 - GOVERNMENT
ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 8 - CONGRESSIONAL REVIEW OF AGENCY RULEMAKING
Sec. 804. Definitions
For purposes of this chapter -
(1) The term ''Federal agency'' each authority of the
Government of the United States, whether or not it is
within or subject to review by another agency, but
does not include -
yada yada.
(3) The term ''rule''
has the meaning given such term
in section 551,
the whole or a part of an
agency
statement of general applicability and
future effect designed to implement, interpret, or
prescribe law...
|
Moving on to the specific
rules if Congress does NOT agree with the agency interpretation of the
Congressional statutes...
TITLE
5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 8 - CONGRESSIONAL REVIEW OF AGENCY RULEMAKING
Sec. 801. Congressional review
-STATUTE-
(a)(1)(A) Before a rule can take
effect, the Federal agency
promulgating such rule shall submit
to each House of the
Congress and to the Comptroller General a report containing -
(i) a
copy of the rule;
(ii) a concise general statement relating to the rule,
including whether it is a major rule;
and
(iii) the proposed effective date of the rule.
(4) Except for a major rule, a rule shall take effect
as otherwise provided by law after submission to Congress
under paragraph (1).
(b)(1) A rule shall not take
effect (or continue), if the
Congress enacts a joint resolution of disapproval, described
under section 802, of the rule.
|
TITLE
5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 8 - CONGRESSIONAL REVIEW OF AGENCY RULEMAKING
Sec. 802. Congressional disapproval procedure
-STATUTE-
(a) For purposes of this section, the term ''joint
resolution'' means only a joint resolution introduced in the
period beginning on the date on which the report referred to
in section 801(a)(1)(A) is received by Congress and ending 60
days thereafter (excluding days either House of Congress is
adjourned for more than 3 days during a session of Congress),
the matter after the resolving clause of which is as follows:
''That Congress disapproves the rule
submitted by the _ _
relating to _ _, and such rule
shall have no force or
effect.'' (The blank spaces being appropriately filled in).
(b)(1) A joint resolution described in subsection (a) shall be
referred to the committees in each House of Congress with
jurisdiction.
(2) For purposes of this section, the term ''submission or
publication date'' means the later of the date on which -
(A) the Congress receives the report submitted under
section 801(a)(1); or
(B) the rule is published in the Federal Register, if
so published. |
TITLE
26 - INTERNAL REVENUE CODE
Subtitle F - Procedure and Administration
CHAPTER 80 - GENERAL RULES
Subchapter A - Application of Internal Revenue Laws
Sec. 7805. Rules and regulations
-STATUTE-
(a) Authorization
Except where such authority is expressly given by
this title to any person other than an officer or
employee of the Treasury Department,
the Secretary
shall prescribe all needful rules and regulations for
the enforcement of this title, including all rules
and regulations as may be necessary by reason of any
alteration of law in relation to internal revenue. |
The IRS Employee procedure
manual, called the IRM or Internal
Revenue Manual states:
4.10.7.2.3.1
(05-14-1999)
Income Tax Regulations
The Federal Income Tax Regulations
(Regs.) are the official
Treasury
Department interpretation of the
Internal Revenue Code and follow the numbering
sequence of Internal Revenue Code sections.
4.10.7.2.3.4 (05-14-1999)
Authority of the Regulations
The
Service is bound by the regulations. |
The wording HAS NOT CHANGED from the April 1997 printing until the 2004
printing, the regulations have been IN EFFECT with the FULL FORCE AND
EFFECT OF THE LAW for the 8 years it has been online.
Compare the
following words found here:
Cite
[Code of Federal Regulations]
[Title 26, Volume 9, Part 1 (Secs. 1.851-1.907)]
[Revised
as of April 1, 1997]
From the U.S. Government Printing Office via GPO Access
[CITE: 26CFR1.861-8]
[Page 138-165]
TITLE 26--INTERNAL REVENUE
CHAPTER I--INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY
(CONTINUED)
Sec. 1.861-8 Computation of taxable income from sources within
the United States and from other sources and activities.
(a) In general--(1) Scope. Sections 861(b) and 863(a) state in general
terms how to determine taxable income of a taxpayer from sources within
the United States after gross income from sources within the United
States has been determined. Sections 862(b) and 863(a) state in general
terms how to determine taxable income of a taxpayer from sources
without the United States after gross income from sources without the
United States has been determined. This section provides specific
guidance for applying the cited Code sections by prescribing rules for
the allocation and apportionment of expenses, losses, and other
deductions (referred to collectively in this section as ``deductions'')
of the taxpayer. The rules contained in this section apply in
[[Page 139]]
determining taxable income of the taxpayer from specific sources and
activities under other sections of the Code, referred to in this
section as operative sections.
See paragraph (f)(1) of this section for a list and description of
operative sections. |
With the
following words found here:
Cite
[Code of Federal Regulations]
[Title 26, Volume 9]
[Revised
as of April 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 26CFR1.861-8]
[Page 138-164]
TITLE 26--INTERNAL REVENUE
CHAPTER I--INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY
(CONTINUED)
PART 1_INCOME TAXES--Table of Contents
Sec. 1.861-8 Computation of taxable income from sources within
the United States and from other sources and activities.
(a) In general--(1) Scope. Sections 861(b) and 863(a)
state in general terms how to determine taxable
income of a taxpayer from sources within the United
States after gross income from sources within the
United States has been determined. Sections 862(b)
and 863(a) state in general terms how to determine
taxable income of a taxpayer from sources without the
United States after gross income from sources without
the United States has been determined. This section provides specific
guidance for applying the cited
Code sections by prescribing rules for the allocation
and apportionment of expenses, losses, and other
deductions (referred to collectively in this section
as ``deductions'')
of the taxpayer. The rules
contained in this section apply in
determining
taxable income of the taxpayer from specific sources
and activities under other sections of the Code, referred to in this
section as operative sections.
See paragraph (f)(1) of this section for a list and
description of operative sections. |
|