By Cindy Skrzycki
Tuesday, March 7, 2006
Next Tuesday, the Federal Register celebrates its 70th year as the country's chronicle of regulatory minutia. True to the publication's reputation as an encyclopedia for policy nerds, the party being thrown by the National Archives and Records Administration and the Government Printing Office starts at 9 a.m. -- scheduled, no doubt, to let federal bureaucrats scurry back to their desks to write more rules.
The celebration marks the evolution of a publication that began as a two-column, 16-page gazette of the burgeoning federal bureaucracy created by the New Deal. It has progressed from a diary of completed rulemakings -- usually about five items a day at first -- to an Internet-based reference that allowed some 208 million documents to be downloaded in 2004.
On March 14, 1936, when the first issue came off the presses, the Federal Register contained items about regulating the handling of milk in the St. Louis area, trade practice rules the Federal Trade Commission issued for button manufacturers, and an excise tax on employers under the Social Security Act.
The readers were few. The cost for a subscription was $10 annually. And some officials worried there would not be enough material to publish daily. Indeed, it took only 1,500 pages to fill the first six months of the publication, compared with the 75,675 pages printed in 2004.
Subscriptions to the print version now cost $749. Circulation plummeted to 2,500 from 20,000 after the register became available for free online in 1994.
Though he had doubts about establishing the register, President Franklin D. Roosevelt wrote the lead-off rule -- really an executive order -- to enlarge the Cape Romain Migratory Bird Refuge in South Carolina. Roosevelt appointed the first director, retired Army Maj. Bernard R. Kennedy , at a salary "not to exceed" $5,000 a year.
The Federal Register continues to be a mirror of the public policy life of the nation. Over the past few weeks, readers have learned that the Fish and Wildlife Service will not consider a special designation for the Douglas County pocket gopher, that the Food and Drug Administration gave guidance to industry for the study of vaccines, that there's a new Medicare payment schedule for inpatient psychiatric care, and that there's an investigation into the importing of orange juice from Brazil.
"The breadth and impact of rulemaking is greater," said Raymond A. Mosley , now in his 10th year as director. "The interest, awareness, and participation of the American people has grown exponentially. Certainly, what appears in the Federal Register is routinely influencing American lives every day in ways that could not be foreseen in the 1930s."
Agencies pay $498 a page to the printing office to publish the thousands of pages of rules and other legal proceedings. The largest document ever printed ran to 12 "books" on May 3, 2002 -- the 6,653-page Microsoft Corp. antitrust settlement with the Justice Department . The register has never has missed a day of publication, including during the government-wide shutdown in the 1990s and after Sept. 11, 2001.
Agencies may prepare material for submission in either electronic or paper form, supported by a computer backup. But, as in the old days, messengers continue to run between the Federal Register office and the Government Printing Office across the street. Digital signatures are catching on, but many agency officials prefer to have paper documents circulated for the real thing before shipping off the materials.
Although there are bound volumes of every issue, no authoritative history of the Federal Register exists. But there are informal accounts and anecdotal information about the politics behind establishing a daily record of federal government rules.
Legal experts and historians who have studied the genesis of the register, modeled after England's Rules Publication Act of 1893, credit Supreme Court Justice Louis Brandeis for pulling the proper political levers to make it a reality.
He was reacting to two things: the federal government's dismal central recordkeeping system (there wasn't any) and a stunning increase in regulation generated by New Deal programs. Brandeis worried about the "bigness" of government and the need to tell the public what government was doing.
He expressed the sentiment eloquently in 1914: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman."
Brandeis applied this philosophy when a case involving two oil companies came before the Supreme Court in 1934.
Embarrassingly for the Justice Department, the government was prosecuting the companies for failing to comply with a regulation that technically did not exist when they were charged. And no one could find the original. The government lost the case on a constitutional issue, but what was memorable were the blistering questions from the bench about how to find a copy of the rule.
So he pushed for publication of an article in the Harvard Law Review called "Government Ignorance of the Law -- a Plea for Better Publication of Executive Legislation." Then, Rep. Emanuel Celler of New York introduced a bill that became the Federal Register Act on July 26, 1935.
The register and the Code of Federal Regulations, the permanent, indexed collection of those rules, became the record and road map for completed rulemakings. With passage of the Administrative Procedure Act in 1946, the register also became the vehicle for opening executive-branch proposals for public comment.
Notice in the Federal Register also is often the last word before a rule is challenged in court.
The information that appears in the register sometimes is so important to lawyers, lobbyists and citizen-centered groups that they stand sentry to get a peek at rules before they are published.
Mosley explained that copies of original documents are available to read and copy in a small reading room at 800 N. Capitol St. NW at least a day before publication. "There are regulars who come around, especially for Internal Revenue Service and Health and Human Services rules," he said.
Consumer activist Ralph Nader learned at an early age that the register was essential reading. When Nader was 15 or 16, he recalled, he got his copies from Sen. Prescott Bush , his Republican senator from Connecticut (and the current president's grandfather).
The registers came in the mail within two days, along with the subscription to the Congressional Record the senator gave him. "The citizen activists have no idea what they can discover just by thumbing through it," Nader said.
The electronic version of the register has brought in readers all over the country. Mosley shared an e-mail from a cattle rancher in Northern California who said he can keep track of Forest Service rules, which otherwise were hard to find. "That gives me precious time to tend to the 'critters' and feel less frustrated about all this," the rancher wrote.