Difference between revisions of "Federal Register Act"
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*2011-5, [https://www.acus.gov/recommendation/incorporation-reference Incorporation by Reference].
===National Archives of the United States===
===National Archives of the United States===
Revision as of 09:39, 29 October 2018
44 U.S.C. §§ 1501–1511 (2012), enacted July 25, 1935, by Pub. L. No. 74-220, 49 Stat. 500; significantly amended June 19, 1937, by Pub. L. No. 75-158, 56 Stat. 304; Sept. 23, 1950, by Pub. L. No. 81-821, 61 Stat. 636; Oct. 22, 1968, by Pub. L. No. 90-620, 82 Stat. 1273, Oct. 10, 1978, by Pub. L. No. 95-440, 92 Stat. 1063; Oct. 19, 1984, by title I, Pub. L. No. 98-497, 98 Stat. 2280, 2286; Dec. 16, 2014, by Pub. L. No. 113-235, 128 Stat. 2537; Jan. 22, 2018, by Pub. L. No. 115-120, 132 Stat. 28.
- 1 Overview
- 2 Legislative History and Congressional Documents
- 3 Bibliography
- 4 Statutory Provisions
Recognizing the need for a uniform system for publication of federal regulations and other important documents, Congress approved the Federal Register Act in 1935. Prior to establishment of the Federal Register, there were no facilities for filing and publication of rules, executive orders, and similar documents having general applicability and legal effect. This made it extremely difficult, and sometimes impossible, for interested persons to learn about rules and orders that had the force of law. Indeed, passage of this legislation ended what many sponsors of the bill described as “the twilight zone of government regulations.”
The Federal Register Act requires the filing of certain documents with the Office of the Federal Register, availability of these documents for public inspection, publication of documents in the Federal Register, and the permanent codification of rules in the Code of Federal Regulations. Agencies must file executive orders, presidential proclamations, and documents, selected by the President, with general applicability and legal effect. Publication of documents in the Federal Register provides “constructive” notice legally sufficient to give anyone affected legal notice, unless notice by publication is insufficient in law, of the document’s existence and is deemed legally sufficient to give affected persons notice of the document’s contents. In addition, the Administrative Procedure Act requires publication in the Federal Register of agency statements of organization, procedural rules, and the public notices required for agency rulemaking.
Office of the Federal Register
The Archivist of the United States, acting through the Office of the Federal Register (OFR), is charged with the custody and, together with the Director of the Government Publishing Office (GPO), the prompt and uniform printing and distribution of the documents required or authorized to be published in the Federal Register. The GPO is responsible for actual publication of the Federal Register.
Through the OFR, the National Archives and Records Administration (NARA) provides ready access to regulations by filing them for public inspection, publishing them in the daily Federal Register, preparing indexes and tables of contents, and codifying them in the Code of Federal Regulations (C.F.R.). It provides access to federal public laws by publishing slip laws and compiling them as the U.S. Statutes at Large. Presidential documents appear in the daily Federal Register, the Weekly Compilation of Presidential Documents, the semiannual volumes of Public Papers of the President, in Title 3 of the Code of Federal Regulations, and in the Codification of Proclamations and Executive Orders.
The Federal Register
The Federal Register is the U.S. Government’s official gazette published every business day. It contains federal agency regulations; proposed rules and notices; and executive orders, proclamations, and other Presidential documents. The Federal Register informs citizens of their rights and obligations and provides access to a wide range of federal benefits and opportunities for funding. NARA’s OFR prepares the Federal Register for publication in partnership with the GPO, which distributes it in paper, on microfiche, and on the Internet.
The Federal Register is intended to provide potentially useful information about government activities to people who need to know about the day-to-day operations of the federal government; those whose business is regulated by a federal agency; attorneys practicing before a regulatory agency; organizations wishing to attend public hearings or meetings or apply for grants; and others concerned with government actions that affect the environment, health care, financial services, exports, education, or other major public policy issues.
Organization of the Register
Each issue of the Federal Register is organized into four categories:
- Presidential Documents, including executive orders and proclamations;
- Rules and Regulations, including policy statements and interpretations of rules;
- Proposed Rules, including petitions for rulemaking and other advance proposals; and
- Notices, including scheduled hearings and meetings open to the public, grant applications, and administrative orders.
The Code of Federal Regulations
Documents published in the Federal Register as rules and proposed rules include citations to the C.F.R. parts affected. The C.F.R. contains the complete and official text of agency regulations organized into 50 titles covering broad subject areas. The C.F.R. is updated and published once a year in print, but is updated daily on-line.
Obtaining Federal Register Information
The daily Federal Register has a table of contents organized alphabetically by agency, which lists each document. Two monthly publications provide information on documents that appeared in past issues of the Federal Register: the LSA (List of C.F.R. Sections Affected) is a numerical listing that helps readers track changes to the C.F.R.; and the Federal Register Index is a cumulative subject index of documents published in the Federal Register. The online edition has the same table of contents as the paper edition, with hypertext links to take users directly to each document in the current issue. Tables of contents with these hypertext links provide access to Federal Register documents published since January 1, 1998. Online users also can search by category, subject matter, and date to retrieve documents in current or past issues from 1994 through the present day.
Incorporation by Reference (IBR)
Not all information is readily accessible in print or online. A growing point of contention concerns the practice of codifying—through reference—technical standards in the Federal Register that are developed by private organizations. To access the standards in full, one generally has to visit the OFR or NARA in person, or pay a sizable fee to a private party. Commonly known as “incorporation by reference,” its authority is derived from § 552(a)(1)(E) of the APA, which allows standards published in the Federal Register to be incorporated by reference if those standards are “reasonably available” (an undefined requirement) and are approved by the Director of the Federal Register pursuant to applicable OFR regulations. Today, it is conservatively estimated that there are 9500 IBR standards in the C.F.R. Some have challenged the continuance of this ever-expanding phenomenon, arguing (1) that it is inconsistent with the principles of open government and (2) that the established presence of freely accessible sites to view agency rules, such as federalregister.gov and ecfr.gov, has obviated IBR’s original purpose to compress the size and improve the readability of the C.F.R.
In October of 2013, the Office of Federal Register partially granted, through a notice of proposed rulemaking, a petition making these very assertions. In essence, the petitioners requested that all material “IBR’d” into the C.F.R. be available for free online. While agreeing with the petitioners that the IBR process should be updated, the OFR disclaimed the authority to promulgate what the petitioners sought. The OFR also noted, among other things, that the daily Federal Register is not universally free and that the FRA still requires print publication of both the Federal Register and the C.F.R. Despite rejecting the petitioner’s central request, the OFR nevertheless proposed that “if agencies seek the Director’s approval of an IBR request, they must set out the following information in the preambles of their rulemaking documents: discussions of the actions the agency took to make the materials reasonably available to interested parties, or summaries of the content of the materials the agencies wish to IBR.” 78 Fed. Reg. 60,784 (Oct. 2, 2013).
Role of the Administrative Committee
The Administrative Committee of the Federal Register consists of the Archivist of the United States or Acting Archivist, an officer of the Department of Justice designated by the Attorney General, and the Public Printer or Acting Public Printer. This Committee is responsible for prescribing, with the approval of the President, regulations for carrying out the Federal Register Act. These regulations appear in 1 C.F.R. Parts 1–22, and deal with format and distribution of the Federal Register and preparation and transmittal of documents.
Legislative History and Congressional Documents
For years prior to passage of the Federal Register Act, many people had advocated legislation that would establish a means for systematic publication and availability of important government documents. Until the Act’s passage, though, the United States was one of very few large nations without an official gazette. In 1934, the American Bar Association formally recommended that rules and “other exercises of legislative power by executive or administrative officials” be made readily available at some central office and be subject to requirements that they be published “as prerequisite to their going into force and effect.” Later that year, the need for such a system was evidenced when, in the “Hot Oil” case (Panama Refining Co. v. Ryan, 293 U.S. 388 (1935)), the Attorney General, arguing in the Supreme Court, admitted that the trial below had proceeded in ignorance of a technical, though inadvertent, revocation of the regulation on which prosecution had rested. This last-minute discovery—of an executive order that accomplished the unintended amendment and had been overlooked for over a year, to the detriment of the defendant—highlighted the need for systematic publication. An interagency committee examined the problem of making administrative law readily available and recommended a legislative solution that would centralize custody and publication of agency rules and orders.
Several bills establishing a central office to collect and publish agency rules and orders were introduced during the first session of the 74th Congress in early 1935. These included H.R. 1403, H.R. 2884, H.R. 4015, H.R. 5154, and H.R. 6323. Most of these were referred to the Committee on the Judiciary, which held hearings on February 6, 1935, concerning H.R. 5154 and H.R. 2884 (introduced by Rep. Emanuel Celler (D-NY)). Hearings Before Subcomm. of Comm. on the Judiciary, H. of Representatives, on H.R. 5154 and H.R. 2884, February 6, 1935. On March 4, 1935, Mr. Celler submitted a report to accompany H.R. 6323, on Publication of Governmental Rules and Regulations (Report No. 280), that synopsized the bill and recommended its passage by the full House. The Committee on the Library also reported H.R. 4015, a bill for filing and indexing government publications, on May 13, 1935. Filing and Indexing Service for Useful Government Publications (Report No. 885). The full House approved H.R. 6323 on April 1, 1935.
A bill similar to H.R. 6323 was introduced in the Senate by Senator Henry Ashurst (D-AZ) on March 13, 1935. Both this bill, S. 2236, and H.R. 6323 were initially referred to the Senate Judiciary Committee; H.R. 6323 was subsequently referred to the Committee on the Library. The full Senate approved H.R. 6323, with several amendments, on June 10, 1935.
On July 11, 1935, a conference report (House Report No. 1502) was submitted by the Committee of Conference. The Senate agreed to the report that day, and the House did the same on July 22. The bill was signed into law on July 25, 1935.
NARA’s OFR has prepared a useful guide, The Federal Register: What It Is and How to Use It. This office also publishes a Document Drafting Handbook that explains in detail how to prepare documents for the Federal Register. As stated above, the regulations for carrying out FRA are located at 1 C.F.R. Parts 1–22. NARA has a list of Federal Register Research Tools that can provide page numbers or citations to help with use of GPO Access.
Legislative History and Congressional Documents
- Hearings Before Subcomm. of Comm. on the Judiciary, H. of Representatives, on H.R. 5154 and H.R. 2884, February 6, 1935.
- Report to accompany H.R. 6323, on Publication of Governmental Rules and Regulations (Report No. 280)
- Filing and Indexing Service for Useful Government Publications (Report No. 885).
- House Report No. 1502*Federal Register Printing Savings Act of 2016, H.R. Rep. No. 113-515 (2014).
- Federal Register Printing Savings Act of 2016, H.R. Rep. No. 114-841 (2016).
- Federal Register Printing Savings Act of 2017, S. Rep. No. 115-184 (2017).
- Federal Register Printing Savings Act of 2017, H.R. Rep. No. 115-128 (2017).
- 2011-5, Incorporation by Reference.
National Archives of the United States
- Document Drafting Handbook (2018).
- The Federal Register: What It Is and How to Use It (GPO).
- IBR Handbook (2018).
- Emily S. Bremer, Incorporation by Reference in an Open-Government Age, 36 Harv. J.L. & Pub. Pol’y 131 (2013) (report to Admin. Conf. of the U.S.).
- Erwin Griswold, Government in Ignorance of the Law: A Plea for Better Publication of Executive Legislation, 48 Harv. L. Rev. 198 (1934).
- Richard J. McKinney, A Research Guide to the Federal Register and the Code of Federal Regulations (Law Librarians Society of Washington, D.C., 2002).
- Jonathan Manes, Secret Law, 106 Geo. L.J. 803 (2018).
- Nina A. Mendelson, Private Control Over Access to Public Law: The Puzzling Federal Regulatory Use of Private Standards, 112 Mich. L. Rev. 737 (2014).
- Note, The Federal Register and the Code of Federal Regulations—A Reappraisal, 80 Harv. L. Rev. 439 (1966).
- A. Proulx, Federal Register, Law Notes (Vol. XLVI, p.15) (1942).
- Peter L. Strauss, Private Standards Organizations and Public Law, 22 Wm. & Mary Bill Rts. J. 497 (2013).
- John H. Wigmore, Federal Administrative Agencies: How to Locate Their Rules of Practice and Their Rulings with Special Reference to their Rules of Evidence, A.B.A. J. 25 (1939).
Federal Register Act
Title 44 U.S. Code
- § 1501. Definitions
- § 1502. Custody and printing of Federal documents; appointment of Director
- § 1503. Filing documents with Office; notation of time; public inspection; transmission for printing
- § 1504. “Federal Register”; printing; contents; distribution; price
- § 1505. Documents to be published in Federal Register
- § 1506. Administrative Committee of the Federal Register; establishment and composition; powers and duties
- § 1507. Filing document as constructive notice; publication in Federal Register as presumption of validity; judicial notice; citation
- § 1508. Publication in Federal Register as notice of hearing
- § 1509. Costs of publication, etc.
- § 1510. Code of Federal Regulations
- § 1511. International agreements excluded from provisions of chapter