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202 FW 1
Overview for Publishing Federal Register Documents

Date: July 12, 2022

Supersedes 202 FW 1 and 3 through 7, 4/12/2010 and 1/27/2020, and Director’s Order 223, 7/21/2020

Series: Administrative Procedure

Part 202: The Federal Register

Originating Office: Policy and Regulations Branch

                                                                                    TABLE OF CONTENTS

Topics

Sections

Overview

 

1.1 What is the purpose of this and the other chapter in Part 202? 1.2 How is Part 202 organized?

1.3 What is the scope of the chapters in Part 202?

1.4 What terms do employees need to know to understand the chapters in Part 202?

Authorities

1.5 What are the authorities for the chapters in Part 202?

1.6 How can employees learn more about the authorities that govern Federal rulemaking?

Responsibilities

1.7 Who is responsible for Federal Register publication and the Federal Docket Management System (FDMS)?

1.8 Whom should employees contact for answers to questions about publishing documents in the Federal Register?

1.9 Whom should employees contact for answers to questions about FDMS?

 

OVERVIEW

 

1.1 What is the purpose of this and the other chapter in Part 202? The chapters in Part 202 of the U.S. Fish and Wildlife Service (Service) Manual describe policies and procedures for preparing and issuing Federal Register documents and for using the Federal Docket Management System (FDMS), which allows the Service to comply with electronic rulemaking requirements and provide the public with convenient access to rulemaking documents and an electronic means to comment. A supplementary document to these chapters is the Service Handbook on Publishing Documents in the Federal Register.

 

1.2  How is Part 202 organized? Part 202 consists of two chapters and one supplementary document:

 

A. 202 FW 1, Overview for Publishing Federal Register Documents, provides basic information on Part 202, including its scope, background information on the statutory authorities related to Federal rulemaking, the responsibilities for rulemaking in the Service, and an explanation of the terms used in Part 202.

 

B. 202 FW 2, Considerations for Rulemaking, outlines issues that Service programs should consider before engaging in rulemaking.

 

C. The Service Handbook on Publishing Documents in the Federal Register, Part 202’s supplementary document, provides detailed information on drafting and publishing Federal Register documents and Service use of FDMS.

 

1.3 What is the scope of the chapters in Part 202?

 

A. The chapters in Part 202:

 

(1) Apply to the preparation of rules and other Federal Register documents, and

 

(2) Supplement the laws, regulations, and guidelines we reference in section 1.5.

 

B. Employees should consult all appropriate guidance when writing Federal Register documents.

 

1.4 What terms do employees need to know to understand the chapters in Part 202? Exhibit 1 provides the glossary of terms used in these chapters and in the Service Handbook on Publishing Documents in the Federal Register.

 

AUTHORITIES

 

1.5  What are the authorities for the chapters in Part 202?

 

A. The Administrative Procedure Act (APA) (5 U.S.C. 551 et seq.) (also see section 1.6A).

 

B. Congressional Review Act (CRA) (5 U.S.C. 801 et seq.) (also see section 1.6B).

 

C. Executive Orders (E.O.) on the Federal regulatory process (also see section 1.6C).

 

D. The eGovernment Act of 2002 (44 U.S.C. 3601).

 

E. The Federal Register Act (FRA) (44 U.S.C., Chapter 15) (also see section 1.6D).

 

F. General Provisions, Administrative Committee of the Federal Register (1 CFR Parts 18, 21, 22, and 51).

 

G. Office of the Federal Register (OFR) Document Drafting Handbook.

 

H. U.S. Government Publishing Office Style Manual.

 

I.  318 Departmental Manual (DM), Federal Register Documents, and the Departmental Handbook on How to Prepare Regulations and Federal Register Notices (318 DM HB).

 

1.6 How can employees learn more about the authorities that govern Federal rulemaking? Following is some of the most relevant information you need to know from the authorities in section 1.5.

 

A. The Administrative Procedure Act (APA) (5 U.S.C. 551 et seq.).

 

(1) The basic requirements of section 553, which is the section on informal rulemaking (see Exhibit 1, Glossary), state that Federal agencies must:

 

(a) Publish proposed rules in the Federal Register. Notices of proposed rulemaking must include:

 

(i) A statement of the time, place, and nature of public rulemaking procedures;

 

(ii) Reference to the legal authority under which the rule is proposed; and

 

(iii) Either the terms or substance of the proposed rule or a description of the subjects and issues involved.

 

(b) Give those interested an opportunity to participate in the rulemaking by allowing them to submit written data, views, or arguments, with or without opportunity for oral presentation.

 

(c) After considering all comments received, publish final rules in the Federal Register and include a concise general statement about why we wrote them and what their purpose is.

 

(d) Allow at least 30 days following publication of a final rule before it becomes effective, except in the following cases:

 

(i) A substantive rule that grants or recognizes an exemption or relieves a restriction,

 

(ii) Interpretative rules and statements of policy, or

 

(iii) As otherwise provided by the agency for good cause found and published with the rule.

 

(2) There are exceptions to the APA requirements described above. Except when a statute requires a notice or hearing, section 553 does not apply:

 

(a) To interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice;

 

(b) When the agency for good cause finds (and incorporates the finding and a brief statement of reasons in the rules issued) that notice and public procedure are impracticable, unnecessary, or contrary to the public interest; or

 

(c) In situations involving U.S. military or foreign affairs functions; agency management or personnel; or public property, loans, grants, benefits, or contracts.

 

B. Congressional Review Act (CRA) (5 U.S.C. 801 et seq.). The CRA, part of the Small Business Regulatory Enforcement Fairness Act of 1996, allows Congress 60 days to review all new Federal regulations and, with passage of a joint resolution (with Presidential signature), to overrule a regulation. In addition, the U.S. Government Accountability Office provides a report on each new major rule to congressional committees whose purview includes that new regulation.

 

C. Executive Order (E.O.) 13563, Improving Regulation and Regulatory Review, which reaffirms E.O. 12866, Regulatory Planning and Review. E.O. 12866 outlines steps that executive branch agencies must follow before the regulations they issue take effect. For all regulations, you must perform cost-benefit analysis. Regulations that will have an annual effect on the economy of $100 million or more are “major rules” and require us to complete a regulatory impact analysis (RIA). The RIA must justify the cost of the new regulation, and the Office of Management and Budget (OMB) must approve it before it takes effect. E.O. 12866 also requires all regulatory agencies to prepare and submit material for the Regulatory Plan and Unified Agenda, the purpose of which are to establish regulatory priorities and improve coordination of the Administration's regulatory program.

 

D. The Federal Register Act (FRA) (44 U.S.C., Chapter 15). The requirements of the FRA include, among other things:

 

(1) After an agency submits a document to the Office of the Federal Register (OFR) of the National Archives and Records Administration, and following OFR’s review of that document, OFR makes an electronic version of the document available for public inspection according to OFR’s filing/publication schedule and also electronically forwards the document to the U.S. Government Publishing Office for publication in the Federal Register.

 

(2) Documents published in the Federal Register include documents that the President determines have general applicability and legal effect, all documents that set penalties, and documents that Congress requires agencies to publish.

 

(3) Until a Federal agency submits a document to the OFR and the OFR makes the document available for public inspection, the document is not in effect. People cannot be held responsible for complying with a document if they have no knowledge of it. By publishing a document in the Federal Register, we can prove that we issued, prescribed, or promulgated the document.

 

(4) In general, you must publish notices of hearings not fewer than 15 calendar days before the hearing.

 

(5) OFR officials prepare and publish the Code of Federal Regulations (CFR). The CFR is a complete codification of regulations that have published in the Federal Register. To keep the CFR as current as practicable, OFR either supplements or collates and republishes each book of the CFR at least once each calendar year.

 

(6) The CFR, as amended by documents filed with OFR and published in the daily issues of the Federal Register, is adequate evidence of the text of the documents and of the fact that they are in effect on the effective date stated in the final rule.

 

RESPONSIBILITIES

 

1.7 Who is responsible for Federal Register publication and the Federal Docket Management System (FDMS)? See Table 1-1.

 

Table 1-1: Responsibilities for Federal Register Publication and FDMS

These employees…

Are responsible for…

A. The Assistant Secretary for Fish and Wildlife and Parks (A/S) or a Secretarial officer

Issuing (i.e., signing) rulemaking documents for the Service, except for those documents we describe in section 1.7B(1) of this chapter. The A/S also signs most major policy documents that we publish in the Federal Register.

B. The Director

(1) Signing rulemaking documents that pertain to specific species on the Lists of Endangered and Threatened Wildlife and Plants in 50 CFR part 17. The Director may delegate digital signature to the Chief, Policy and Regulations Branch (PRB), or to the Acting PRB Chief, but only after the Director has approved the content of the document (see section 1.7F(2)).

 

(2) Ensuring that we write rules that are clear and easy for the public to understand.

 

(3) Ensuring that we develop rules and get approval according to the criteria and procedures in 318 DM and Part 202 of the Service Manual.

 

(4) Ensuring that we prepare regulatory analysis documents when required.

 

(5) Requiring the Chief, Division of Policy, Economics, Risk Management, and Analytics (PERMA), to designate at least two employees to serve as principal and alternate Federal Register Liaison Officers.

C. The Assistant Director - Management and Administration

Overseeing the administration of the Federal Register document development and clearance process.

 

D. Directorate members, their Deputies, Assistant Regional Directors, or their designees

(1) Determining the need for a rulemaking action.

 

(2) Conducting the first review of Federal Register rule packages before sending them to Headquarters. This review ensures technical accuracy of the rule content and adherence to Service policy.

 

(3) Signing Federal Register notices or delegating signature authority, except for those notices where signature authority is retained at a higher level (e.g., establishment notices for committees governed by the Federal Advisory Committee Act).

E. Directorate members in Headquarters or their designees

Ensuring that the content of rulemaking and notice documents under their areas of jurisdiction is necessary and accurate, and that it meets the requirements we describe in Part 202 of the Service Manual.

F. The Chief, Division of Policy, Economics, Risk Management, and Analytics (PERMA), through the Policy and Regulations Branch (PRB)

 

 

(1) Administering the Federal Register document publication process. PRB employees serve as principal and alternate Federal Register liaisons and certifying officers.

 

(2) Signing rulemaking documents when delegated by the Director as we describe in section 1.7B(1). When the PRB Chief or Acting PRB Chief is not available to sign, the PRB Chief may delegate the authority to the principal Federal Register liaison (or alternate Federal Register liaison), but no further.

 

(3) Assigning employees to:

 

(a) Serve as the points of contact for the OFR and the Department of the Interior’s Office of the Executive Secretariat and Regulatory Affairs (OES) on all matters related to Federal Register documents.

 

(b) Advise and assist program staff in preparing and issuing readable and properly formatted Federal Register documents.

 

(c) Review Federal Register documents for compliance with 318 DM, OFR’s requirements, and the many statutes and E.O.s that govern the rulemaking process.

 

(4) Preparing required reports related to rulemaking.

 

(5) Overseeing management of the FDMS process and designating at least one employee to serve as the Service FDMS Administrator.

 

1.8 Whom should employees contact for answers to questions about publishing documents in the Federal Register? See the PRB intranet site for current contact information.

 

1.9 Whom should employees contact for answers to questions about FDMS? See the PRB intranet site for current contact information.

 

For more information about this policy, contact the Policy and Regulations Branch (PRB) at PRBDocs@fws.gov.

 

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