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LEGISLATIVE AND ADMINISTRATIVE BACKGROUND
Historical Foreword The legislation which brought about the establishment of the Federal Register also laid the foundation for the Code of Federal Regulations. Prior to the Federal Register Act of July 26, 1935 (49 Stat. 500; 44 U.S.C., Sup. II, 301-314) and the publication of the Federal Register beginning with the issue of March 14, 1936, there were no facilities within the executive branch of the Federal Government for the central filing and publication of all the various Presidential proclamations, Executive orders, administrative rules, regulations, and similar documents which have general applicability and the force of law. The lack of such facilities made it extremely difficult and sometimes impossible for interested parties, official and private alike, to inform themselves concerning the rules, regulations, and other documents which implement, interpret, or apply many Federal statutes.
The establishment of an office for the central publication of Federal administrative regulations had long been advocated. The United States was the only important Nation without an official gazette fulfilling this function. Great Britain, France, Germany, Australia, Ireland, Canada, New Zealand, South Africa, and most of the Latin American countries supported systematic publications which made available and accessible the records of the acts of their executive authorities. At the direction of President Franklin D. Roosevelt, who had advocated such a reform since 1914, an official committee, under the chairmanship of the then Assistant Secretary of Commerce, studied the subject in detail from 1933 to 1935. In 1934 the American Bar Association adopted a recommendation that
Rules, regulations, and other exercises of legislative power by executive or administrative officials should be made easily and readily available at some central office, and, with appropriate provision for emergency cases, should be subjected to certain requirements by way of registration and publication as prerequisite to their going into force and effect. The argument of an important constitutional case in the Supreme Court of the United States in the fall of 1934, in which the Assistant Attorney General representing the Government disclosed to the Court his discovery that the parties had proceeded in the lower courts in ignorance of the technical, though inadvertent, revocation of the regulation upon which the case rested, served to high-light the need for systematic publication of administrative regulations and called forth renewed pleas for a remedy.?
The Federal Register Act, “to provide for the custody of Federal proclamations, orders, regulations, notices, and other documents, and for the prompt and uniform printing and distribution thereof,” was the direct result of these suggestions.
Under the provisions of this Act, the Archivist of the United States, acting through a division established by him in The National Archives (Division of the Federal Register) was charged with the custody and,
* Panama Refining Co. v. Ryan, 293 U. S. 388; see Selected Papers of Homer Cummings, Swisher ed., 1939, pp. 123–124.
* See Griswold, "Government in Ignorance of Law-A Plea for Better Publica. tion of Executive Legislation”, 48 Harv. L. Rev. 198.
together with the Public Printer, with the prompt and uniform printing and distribution of the documents coming within the purview of the Act. These provisions included the appointment of the Director of the Division of the Federal Register by the President to act under the general direction of the Archivist of the United States in carrying out the provisions of the Act and the regulations prescribed thereunder. The Act further provided for the appointment of a permanent administrative committee of three members consisting of the Archivist, or Acting Archivist as Chairman, an officer of the Department of Justice designated by the Attorney General, and the Public Printer or Acting Public Printer. The Director of the Division of the Federal Register was designated as Secretary of the Committee. This Committee was required to prescribe, with the approval of the President, regulations for carrying out the provisions of this Act.
Section 11 of the Act required each executive agency to prepare and file with the Administrative Committee of the Federal Register a complete compilation of all documents which had been issued or promulgated prior to the date documents were required or authorized to be published in the FEDERAL REGISTER. These compilations were to consist only of the documents which were still in force and effect and relied upon by the submitting agency as authority for, or invoked or used by it in the discharge of, any of its functions or activities. The Administrative Committee was required to report with respect to the documents to the President, who was to determine which of such documents had general applicability and legal effect and to authorize the publication thereof in a special or supplemental edition of the FEDERAL REGISTER. The intent of section 11 was to constitute the Division of the Federal Register, The National Archives, the central agency for the filing and publication, not only of current administrative documents, but also of a basic publication containing all similar documents presently in force and effect which had been issued prior to the establishment of the FEDERAL REGISTER. A study of the problems involved and examination of the compilations submitted by the various agencies pursuant to section 11 revealed that mere compilations of documents were almost unusablo because of their bulk and lack of uniformity. Further administrative and legislative study of the problems involved led to the Act approved June 19, 1937, which amended section 11 of the Federal Register Act to provide for a codification rather than a compilation of all existing regulations of the type contemplated by the Act. The amended section 11 provides as follows:
(a) On July 1, 1938, and on the same date of every fifth year thereafter, each agency of the Government shall have prepared and shall file with the Administrative Committee a complete codification of all documents which, in the opinion of the agency, have general applicability and legal effect and which have been issued or promulgated by such agency and are in force and effect and relied upon by the agency as authority for, or invoked or used by it in the discharge of, any of its functions or activities on June 1, 1938. The Committee shall, within ninety days thereafter, report thereon to the President, who may authorize and direct the publication of such codification in special or supplemental editions of the Federal Register.
(b) There is hereby established a Codification Board, which shall consist of six members: The Director of the Division of the Federal Register, chairman ex officio; three attorneys of the Department of Justice, designated by the Attorney General; and two attorneys of the Division of the Federal Register,
designated by the Archivist. The Board shall supervise and coordinate the form, style, arrangement, and indexing of the codifications of the various agencies.
(c) The codified documents of the several agencies published in the supplemental edition of the Federal Register pursuant to the provisions of subsection (a) hereof, as amended by documents subsequently filed with the Division, and published in the daily issues of the Federal Register, shall be prima-facie evidence of the text of such documents and of the fact that they are in full force and effect on and after the date of publication thereof.
(d) The Administrative Committee shall prescribe, with the approval of the President, regulations for carrying out the provisions of this section.
Soon after the Attorney General and the Archivist of the United States designated the members of the Board provided for in paragraph (b) it became evident that additional personnel and machinery would be necessary if the project for a basic code was to be successfully carried out. Accordingly, the Attorney General designated the Assistant Attorney General in charge of the Lands Division as the representative of the Department of Justice to find the means and provide the organization and methods for the effective completion of the project. With him were to serve, as an informal committee, the Special Assistant to the Attorney General who was a member of the Administrative Committee of the Federal Register, to represent that Committee, and the Director of the Division of the Federal Register to represent The National Archives.
Pursuant to the provisions of paragraphs (a) and (d) of the new section 11 of the Federal Register Act, the President, on November 10, 1937, approved the regulations of the Administrative Committee and authorized the publication of the codification in a supplemental edition of the FEDERAL REGISTER. The regulations thus approved appear in codified form at 1 CFR Part 1. A distinguished professor of the Law School of the University of Michigan was selected as a technical director of the codification project and the basic data was collected and systematized in preparation for printing:
The Codification Board, established by paragraph (b) for the purpose of supervising and coordinating the form, style, arrangement, and indexing of the codifications of the various agencies, was
abolished on July 1, 1939, by the President's Reorganization Plan No. II, section 202 (4 F. R. 2732). Plan No. II further provided for the transfer of the functions of the Codification Board to The National Archives and their consolidation with the functions of the Division of the Federal Register, to be administered by the Division under the direction and supervision of the Archivist of the United States. The completion of the editing and publication of the volumes of the Code of Federal Regulations followed.
Divisions of the Code; Tables of Contents The major divisions of the Code consist of 50 titles closely paralleling the titles of the United States Code. The titles are normally divided into chapters which have been assigned to the various agencies in accordance with the subject matter embraced within their regulations. However, in most of the major departments, the Office of the Secretary has been assigned Subtitle À without a chapter designation. In such
titles, Subtitle B is divided into chapters in the usual manner. The principal divisions within chapters are designated as parts.
Each of the commonly used major divisions of the Code, that is, titles, chapters, and parts, carries à table of contents. A list of the agencies or principal departmental functions treated in any particular title appears in the table of contents for that title. Tables of contents for chapters list the part heads carried in the chapter and include subchapter heads where these occur. Tables of contents for parts ordinarily consist of the section heads within the parts, together with any subpart heads or undesignated center heads, and also contain paragraph heads when these are given special emphasis.
Numbering In general, the various divisions of the Code have been numbered as follows:
The principal deviation from this system occurs in Title 14Civil Aviation. In this title the internal structure of each part is shown by the absolute decimal system of numbering. Minor variations of the general numbering plan sometimes occur where it has been found expedient to key the codified material to source documents or to applicable statutes. In such cases the keying of section numbers is explained in a note following the first section in the keyed group. This explanatory note is referred to by a dagger (+) at the end of each section affected. (See "Citations of Source Material", page viii.)
It should be noted that, in general, Chapter I of each title has been assigned Parts 1-199; Chapter II, Parts 200-299; Chapter III, Parts 300-399; etc. Exceptions to this practice have been made where a chapter, by reason of its length or complexity, has required an unusually large number of parts.
Citations to the Code The following short form should be used in citing a section of the Code: 7 CFR 108.16, where reference is made to section 16 of Part 108 in Title 7. Examples of citations commonly used follow: Unit cited:
7 CFR-Agriculture Subtitle.
7 CFR Subtitle A Chapter
7 CFR Chapter I Part.-t
7 CFR Part 108 Section..
7 CFR 108.16 Paragraph.
7 CFR 108.16 (a) Subparagraph.
7 CFR 108.16 (a) (2) Multiple---
7 CFR 108.16, 108.22–108.46
Cross References All types of references from one title to another used within the Code employ the forms of citations exemplified above. References within a title use a shortened form of citation in which identification of the title is omitted; thus: Unit cited:
Subtitle A Chapter
Chapter I Part
Part 108 Section -
8 108.16 Paragraph.
8 108.16 (a) Subparagraph.
8 108.16 (a) (2) Multiple-
88 108.16, 108.22–108.46 Cross reference notes to subject matter related to a title, chapter, or part are carried immediately after the table of contents of the division to which they are pertinent. References from sections or lesser divisions immediately follow the section, paragraph, subparagraph, etc., to which they are pertinent.
In addition to the regular cross references, alphabetical references have been introduced at the end of each of the alphabetically arranged titles. These references are designed to suggest important subjects which would fall_alphabetically between the initial words of the consecutive titles. For example, at the end of Title 7–Agriculture, there is a list of alphabetical references beginning with the subject “Aid of Civil Authorities and Public Relations” and ending with the subject "Alien Property Bureau," thus filling the alphabetical gap between Title 7-Agriculture and Title 8-Aliens and Citizenship.
Citations of Statutory Authority In general, each section of the Code is followed by a citation of statutory authority under which the section was issued. Where the authority is common to a group of sections, a blanket citation for the entire group is inserted after the first section in the group. The blanket authority for a group of sections is identified by an asterisk (*). The authority for an individual section is designated by enclosure in parentheses at the end of the section. In citations of statutory authority “Sup.,” unless qualified by the numerals, I, II, or III, refers to Supplement IV, United States Code, 1934 edition.
Citations of Source Material Source citations have been introduced on a plan similar to that employed for citations of statutory authority. Where the citation of a source document applies to a single section, it is carried in brackets at the end of the section. Where a source document is common to a group of sections a blanket citation identified by a dagger (1) is carried after the first section in the group. In such groups the section numbers are frequently keyed to numbers in the source or statutory material. Where such keying occurs the system is explained in the blanket source citation. Where a blanket citation of the original source is used and the section numbers in the codification are not keyed to the corresponding numbers in the source document, references to the specific sections or portions of the source document are enclosed in