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Federal rulemaking

So yesterday The Legal Genealogist mentioned some of the major resources for federal legal research that genealogists might need to know.

ecfrLittle minor details, y’know, like the Constitution and the statutes.1

And, almost immediately, reader Dick Belz lamented that some sources weren;t mentioned.

“Only one tiny problem,” he wrote; “all those pesky things in the Code of Federal Regulations (have you checked the IRS regs lately?), to say nothing of the incipient stuff constantly showing up in the Federal Register.”

What Dick is talking about is federal rulemaking.

Think of it this way:

• When the legislature does something, it’s a statute.

• When an administrative agency does it, it’s a rule.

Now you might not think that rulemaking is anything that genealogists need to be concerned about.

And you’d be wrong.

In fact, we spent more than an hour in the Civilly Uncommon: Advanced Legal Analysis for Genealogists class at Boston University yesterday talking about just why genealogists might be concerned about what administrative agencies do — and have done.

First off, when administrative agencies make decisions, applying their rules to specific factual situations, they may very well create records that are resources we may want to use in our research.

Think, for example, of the administrative decisions by the Department of the Interior on appealed pension and bounty land claims. These were cases originally decided by the U.S. Pension Office, largely but not entirely out of applications from Civil War soldiers and their families, and then appealed within the administrative system of government.

Before they ever got to the courts — often where there was no way to get the case into the courts — there would be an internal appeal system and the creation of records. You can find some of these collected and published in volumes that have been digitized and put online at, for example, Google Books.2

Secondly, we all know only too well that the administrative decisions of agencies on whether a document can or can’t be disclosed under the Freedom of Information Act (FOIA)3 or the Health Insurance Portability and Accountability Act (HIPAA)4 can immediately impact our research — and not in a good way.

So we need to know what the rules are today, and that’s where the sources Dick is mentioning come into play.

The Code of Federal Regulations (CFR) is the official compiled version of the end result of all that federal agency rulemaking. All the rules the agencies adopt are collected, organized by subject matter and published in a multi-volume set of books.5

The Federal Register (FR) is the official journal of the federal government that, on a daily basis, publishes “rules, proposed rules, and notices of Federal agencies and organizations, as well as executive orders and other presidential documents.”6

But most of us don’t have the CFR or the Federal Register in our personal libraries.7

Often, we can’t even access a library that has those resources.

And even if we have access to such a library, we rarely have access at 3 a.m. In our jammies. And bunny slippers.

We need a better easier alternative to know what the rules say today.

Try this: the Electronic Code of Federal Regulations (e-CFR).

As explained by the Government Printing Office,

The Electronic Code of Federal Regulations (e-CFR) is a currently updated version of the Code of Federal Regulations (CFR). It is not an official legal edition of the CFR. The e-CFR is an editorial compilation of CFR material and Federal Register amendments produced by the National Archives and Records Administration’s Office of the Federal Register (OFR) and the Government Printing Office. The OFR updates the material in the e-CFR on a daily basis.8

So the electronic version has some limits. There are things it includes that may never take effect (some proposed rules) and other things that are in effect that it doesn’t include (some short-term rules and some interpretations).

But it’s pretty good overall, and it’s readily searchable (with plain terms and with Boolean search connectors) and browsable.

Playing by the rules has never been easier.


SOURCES

  1. Judy G. Russell, “Reprise: Federal law primer,” The Legal Genealogist, posted 29 July 2014 (http://www.legalgenealogist.com/blog : accessed 29 July 2014).
  2. See e.g. Hall and Bixler, editors, Decisions of the Department of the Interior in Appealed Pension and Retirement Claims, vol. 7 (Washington, D.C. : Government Printing Office, 1896); digital images, Google Books (http://books.google.com : accessed 29 July 2014).
  3. 5 U.S.C. §552.
  4. 110 Stat. 1936 (1996).
  5. See U.S. Government Printing Office, “Code of Federal Regulations (Annual Edition),” FDsys (http://www.gpo.gov/fdsys : accessed 29 July 2014).
  6. See U.S. Government Printing Office, “Federal Register,” FDsys (http://www.gpo.gov/fdsys : accessed 29 July 2014).
  7. If you do have these, in the print version, you’re richer than Croesus and should adopt me.
  8. U.S. Government Printing Office, “Electronic Code of Federal Regulations,” FDsys (http://www.gpo.gov/fdsys : accessed 29 July 2014).
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