30 November 2006
U.S. Federal Register Informs Citizens of Government Actions
Public notice, opportunity for public comment ensures openness in governance
Washington – In the United States, legislation and litigation, the high-profile tools of democracy, draw most of the media attention, but the true workhorse of the U.S. democratic system of governance is the body of administrative law created by the various departments and agencies of the executive branch.
Whereas a law broadly states what must be done, the regulation lays out in detail how the goals of the law are to be accomplished, how and by whom it will be enforced and the specific penalties for noncompliance.
For more than 70 years, the U.S. Government Printing Office (GPO) and the National Archives, in the daily Federal Register, have provided public notice of executive orders, presidential proclamations and regulatory actions – an important function in the day-to-day business of democracy.
The Federal Register is the mechanism by which every American citizen and every entity affected by U.S. law is guaranteed the opportunity to review the proposed actions of the government, evaluate those proposals and provide specific, timely feedback on how those proposals could be improved.
From its 16-page inaugural issue in 1936, the publication has grown along with the government on which it reports. Only a few thousand pages were published in all of 1936; in contrast, 78,724 pages were published in 2006. In 1936, an annual subscription was $10; an annual subscription to the printed Federal Register is now $929, but it is available on the Internet without charge.
President Franklin Delano Roosevelt, under whose administration the federal bureaucracy greatly expanded, provided the first entry in the March 14, 1936, issue – an executive order expanding a bird sanctuary in South Carolina. On March 14, 2006, the issue’s table of contents included hundreds of entries on topics ranging from animal inspections to veteran’s affairs.
FROM BASIC INFORMATION TO DETAILED DATA
The Federal Register was created by the Federal Register Act of 1935 as a method to communicate final rules to the regulated community.
Supreme Court Justice Louis Brandeis is credited with providing the impetus for creating a formal, published record of rule-making after the Justice Department was unable to produce a copy of a rule it alleged oil companies were violating. Brandeis, outraged at both the federal government’s failure to establish a central record-keeping system and the unprecedented volume of federal rule-making in the mid-1930s, urged the Harvard Law Review to publish an article entitled “Government Ignorance of the Law – A Plea for Better Publication of Executive Legislation.” That article prompted the introduction of the bill that eventually became the Federal Register Act.
In 1946, the Administrative Procedure Act mandated that all proposed rules be made available for public review and comment, so the Federal Register began publishing proposed rules as well as final rules. The 1976 Government in the Sunshine Act, which mandated nearly all agency meetings be open to public observation, added notices of meetings and hearings to the Federal Register.
Today, the Federal Register is the official daily publication for all rules, proposed rules and notices of federal agencies and organizations, as well as executive orders and other presidential documents.
THE RULE-MAKING PROCESS
Under the U.S. legal system, only Congress can pass laws. Departments and agencies in the executive branch, based on either general authority assigned to them under the law or on directives mandated by a specific piece of legislation, draft regulations intended to carry out the law.
This phase of U.S. law is known as implementation – federal regulations implement federal law. This process is replicated at the state level, with each state executive branch producing a set of regulations designed to implement laws passed by its state legislature. Once regulations are adopted (become final), executive agencies can begin enforcing the requirements.
A federal agency developing a regulation has the option of drafting a proposed rule and submitting it for review (a notice of proposed rule-making) or outlining an issue and describing possible regulatory approaches (an advance notice of proposed rule-making). In emergency situations or to meet a deadline imposed by Congress, an agency can issue an interim final rule, which is immediately effective but generally only for a limited period of time.
Typically, those who would be affected by a regulation have at least 30 days to review the proposal and submit their comments to the issuing agency. In addition to accepting written comments, an agency also may hold public hearings to allow oral comments. The agency must review and consider all comments prior to issuing a final permanent regulation.
Rule-making can be a swift and straightforward process in which final regulations are adopted with few comments and little disagreement, but usually the process stretches out over several months. In some situations, rule-making can take more than a decade to complete.
Even after a final rule is adopted, the date on which compliance is required might be weeks or months in the future, and sometimes requirements are phased in gradually. Some provisions of a Department of Transportation rule-making adopted in 1987 were not effective fully until 2003.
For some particularly contentious issues, publication of final rule in the Federal Register simply opens the door for a court challenge. Litigation can delay enforcement of a rule until the case is decided, and a court decision can send the challenged rule back to the issuing agency for changes.
Final rules published in the Federal Register eventually are incorporated into the Code of Federal Regulations, the administrative code that provides the specific requirements that must be met to comply with federal law.
Justice Brandeis stated in 1934, “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants.” He likely would be pleased with the daily efforts of the Federal Register to place the workings of the federal government in the bright sun of public scrutiny.
The online version of the Federal Register is available on the GPO Web site.
