On July 26, 2010, the Office of the Federal Register and the Government Printing Office (GPO) launched “Federal Register 2.0,” a web version of the daily Federal Register. As of now, the site is only a prototype; therefore, “Federal Register 2.0” is not yet an official legal edition of the Federal Register, and it will not become official until the Administrative Committee of the Federal Register (ACFR) issues a regulation granting “Federal Register 2.0” official legal status. Once “Federal Register 2.0” becomes official, the website will allow the public to receive notice of proposed agency regulations, link to a separate website to submit comments on the proposed rules, and track the status of regulations online in one easy-to-access location. The creation of “Federal Register 2.0” signifies a major change to the format and use of the Federal Register as the primary method of lawmaking for the executive branch. Before such a substantial change is made, requiring input and advice from all three branches of government would substantially aid the transition.
To many, the Federal Register may go unnoticed and even be taken for granted. During the 111th Congress, members of Congress introduced only a few bills that would change the administrative procedure laws associated specifically with the Federal Register. Also, very few cases dealing with the notice and comment requirements for agency regulations have come before the Supreme Court. This could lead one to believe that executive branch lawmaking is straightforward and does not require the intervention of the other branches of government. In the absence of action from the legislative branch, the creation and official implementation of “Federal Register 2.0” raises a few questions. The first question is whether it is appropriate for the department that makes general policies regarding the format of submissions to the Federal Register to be able to submit its own proposed regulation to itself and therefore oversee the notice and comment requirements over its own regulation. Another question is whether having the processes of the Federal Register in an electronic medium will lead to increased litigation in the courts. Finally, with the potential for more openness and participation in government, will “Federal Register 2.0” and the agencies be able to handle the probable increase in use, or will it become necessary for Congress to step in and reform the notice and comment rules?
This article will try to answer these questions, and will first look at the history of the legislation that initiated and regulates the Federal Register and the associated methods of creating administrative law. The answers to the questions will be found both in this history as well as in the changes our own society has made in the years since the passage of the legislation that created the Federal Register, the Federal Register Act of 1935.