Publication of proposed rules in Federal Register
Publication of Proposed Rules in the Federal Register
What is the Federal Register?
The Federal Register is the official daily journal of the U.S. federal government that publishes rules, proposed rules, and notices of federal agencies and organizations, as well as executive orders and other presidential documents.
Why Publish Proposed Rules?
Transparency: Publication allows the public and interested parties to know what rules the government is considering.
Notice-and-Comment Rulemaking: Under the Administrative Procedure Act (APA), agencies must publish proposed rules to provide notice and an opportunity for public comment before rules become final.
Accountability: Helps ensure agencies do not issue arbitrary rules and are subject to public and judicial scrutiny.
Legal Basis: Administrative Procedure Act (APA)
Section 553 of the APA requires agencies to publish general notice of proposed rulemaking in the Federal Register.
This includes a statement of time, place, and nature of public rulemaking proceedings, a reference to legal authority, and either the terms or substance of the proposed rule or a description of the subjects and issues involved.
The public then has the right to submit comments before the rule is finalized.
Why is Publication Important?
Due process for affected parties.
Prevents arbitrary or secret rulemaking.
Provides evidence of procedural fairness in court.
Helps courts determine if an agency followed proper procedure.
Landmark Cases on Publication of Proposed Rules and Related Procedural Requirements
1. United States v. Florida East Coast Railway Co. (1973)
Facts: The Interstate Commerce Commission (ICC) changed a rule without adequate notice to affected parties.
Issue: Was the ICC’s failure to publish proper notice of the rulemaking procedure a violation of the APA?
Ruling: The Supreme Court held that agencies must provide adequate notice in the Federal Register to allow parties to participate meaningfully.
Holding: Failure to publish notice invalidates agency action because it deprives parties of due process.
Significance: Emphasized that publication of proposed rules is a fundamental procedural requirement ensuring fairness.
2. Bennett v. Spear (1997)
Facts: The Department of the Interior issued biological opinions without proper publication or opportunity for public comment.
Issue: Did the agency violate the APA by failing to give proper notice and opportunity to comment?
Ruling: The Court held that notice and comment requirements apply when the agency action is legislative or rulemaking in nature.
Holding: Publication in the Federal Register is essential for enabling affected parties to challenge or comply with new rules.
Significance: Clarified that notice requirements extend to substantive rules that affect rights and obligations.
3. Motor Vehicle Manufacturers Association v. State Farm (1983)
Facts: The National Highway Traffic Safety Administration rescinded a safety rule without following proper notice-and-comment procedures.
Issue: Was rescinding a rule without public notice and comment lawful?
Ruling: The Supreme Court ruled that an agency must follow notice and comment procedures even when rescinding rules unless an exception applies.
Holding: Publication of proposed changes in the Federal Register and opportunity to comment are required to prevent arbitrary agency action.
Significance: Established that notice and comment apply not only to new rules but also to significant rule changes or rescissions.
4. Perez v. Mortgage Bankers Association (2015)
Facts: The Department of Labor attempted to change its enforcement policy without going through notice-and-comment rulemaking.
Issue: Can an agency change policies affecting rights without publishing a proposed rule and receiving comments?
Ruling: The Court held that notice and comment are generally required when substantive changes occur.
Holding: Publication of proposed rules in the Federal Register is essential for meaningful participation.
Significance: Reinforced the APA’s procedural safeguards ensuring agencies cannot bypass public scrutiny.
5. Chamber of Commerce v. SEC (2012)
Facts: The Securities and Exchange Commission issued rules without adequate notice and publication.
Issue: Were the SEC’s rulemaking procedures, including publication of proposed rules, sufficient under the APA?
Ruling: The Court emphasized that the agency must comply with publication and comment requirements unless exceptions apply.
Holding: Proper publication in the Federal Register is a prerequisite for valid rulemaking.
Significance: Strengthened the procedural integrity of administrative rulemaking via transparency in the Federal Register.
Summary Table
| Case | Issue | Holding / Significance |
|---|---|---|
| U.S. v. Florida East Coast Railway (1973) | Adequate notice for rulemaking | Publication of proposed rules is essential for due process |
| Bennett v. Spear (1997) | Notice and comment for substantive rules | Publication required for rulemaking affecting rights |
| Motor Vehicle Mfrs. Ass’n v. State Farm (1983) | Rescinding rules without notice | Notice and comment required even for rule rescissions |
| Perez v. Mortgage Bankers Ass’n (2015) | Changing enforcement policies | Must publish proposed rules to allow public comment |
| Chamber of Commerce v. SEC (2012) | Adequacy of notice and publication | Proper Federal Register publication is mandatory |
Final Notes
Publication of proposed rules in the Federal Register is a cornerstone of administrative law.
It ensures government transparency, public participation, and agency accountability.
Courts consistently enforce this requirement to prevent arbitrary, secretive, or unfair rulemaking.
Agencies that fail to comply risk having their rules invalidated.
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