# General Management Laws: A Compendium

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/crs%3ARL30795

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** May 19, 2004
- **Citation:** RL30795

## Text

Order Code RL30795

CRS Report for Congress
Received through the CRS Web

General Management Laws: A Compendium

Updated May 19, 2004

name redacted, Coordinator
Analyst in American National Government
Government and Finance Division

Congressional Research Service ˜ The Library of Congress

General Management Laws: A Compendium
Summary
This report (hereafter “compendium”) is a companion to CRS Report RL32388,
General Management Laws: Major Themes and Management Policy Options. In
combination, these reports have three main objectives: (1) to identify and describe
the major management laws under which the executive branch of the federal
government is required to operate, including their rationale, design, and scope; (2)
to assist Members of Congress and their staff in oversight of executive branch
management; and (3) to help Congress when considering potential changes to the
management laws themselves, as well as other legislation, including authorization
statutes and appropriations.
The compendium contains profiles of selected “general management laws” —
broad statutes designed to regulate the activities, procedures, and administration of
all or most executive branch agencies. The quality of the general management laws,
as well as their implementation, are considered crucial to maintaining the
accountability of the executive branch to Congress, the President, and the public.
Moreover, these laws influence the effectiveness of federal agencies when they
implement, evaluate, and help formulate public policies.
The compendium includes more than 90 separate entries that describe general
management laws for the executive branch of the federal government. The entries
in the compendium are organized into the following seven functional categories: (1)
Information and Regulatory Management; (2) Strategic Planning, Performance
Measurement, and Program Evaluation; (3) Financial Management, Budget, and
Accounting; (4) Organization; (5) Procurement and Real Property Management; (6)
Intergovernmental Relations Management; and (7) Human Resources Management
and Ethics. These categories include many laws and topics, including the Freedom
of Information Act (FOIA, section I.E.), Privacy Act (I.F.), Federal Advisory
Committee Act (FACA, I.G.), National Environmental Policy Act (NEPA, I.L.), Data
Quality Act (I.O.; increasingly known as the Information Quality Act (IQA)),
Inspector General Act (II.A.), Government Performance and Results Act (II.B.),
Balanced Budget and Emergency Deficit Control Act (III.D.), Budget Enforcement
Act (III.E.), Government Corporation Control Act (IV.A.), Davis-Bacon Act (V.F.),
Unfunded Mandates Reform Act (UMRA, VI.C.), Hatch Act (VII.A.(5) and
VII.A.(29)), Ethics in Government Act (VII.B.), Federal Tort Claims Act (VII.E.),
and issues like information security (section I), improper payments (section III),
services acquisition and contracting (section V), and federal employees and civil
service laws (e.g., the National Security Personnel System at the Department of
Defense, and the Department of Homeland Security personnel system (section
VII.A)).
For each entry in the compendium, one or more CRS analysts present a brief
history of the general management law, describe the law’s major provisions, discuss
key developments and issues, and provide source readings for readers who want more
information. The compendium reflects the status of general management laws at the
end of the first session of the 108th Congress, and will be updated along with the
companion report to reflect actions taken through the close of the 108th Congress.

Acknowledgments
The following CRS analysts contributed to this compendium.
Coordinator: (name redacted)
Mildred L. Amer
(name redacted)
(name redacted)
(name redacted)
(name redacted)
Hinda Ripps Chaikind
(name redacted)
(name redacted)
(name redacted)
(name redacted)
(name redacted)
(name redacted)
(name redacted)
(name redacted)
(name redacted)
(name redacted)
(name redacted)
(name redacted)
(name redacted)
(name redacted)

(name redacted)
(name redacted)
(name redacted)
(name redacted)
(name redacted)
(name redacted)
(name redacted)
Thomas Nicola
Patrick J. Purcell
(name redacted)
(name redacted)
(name redacted)
(name redacted)
(name redacted)
(name redacted)
(name redacted)
Michael Simpson
(name redacted)
(name redacted)
(name redacted)

Mildred Boyle provided research production assistance.
Suggestions and comments for future editions may be sent to [[redacted]@crs.loc.gov].

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Purposes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
How the Compendium and Companion Report Are Organized . . . . . . . . . . 2
Compendium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Companion Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I. Information and Regulatory Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
A. Federal Register Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
B. Administrative Procedure Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
C. Federal Records Act and Related Chapters of Title 44 . . . . . . . . . . . . . 16
D. Congressional Review of Regulations Act . . . . . . . . . . . . . . . . . . . . . . 20
E. Freedom of Information Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
F. Privacy Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
G. Federal Advisory Committee Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
H. Government in the Sunshine Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
I. Paperwork Reduction Act of 1995 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
J. Regulatory Flexibility Act of 1980 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
K. Negotiated Rulemaking Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
L. National Environmental Policy Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
M. E-Government Act of 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
N. Federal Information Security Management Act of 2002 . . . . . . . . . . . . 65
O. Data Quality Act (Information Quality Act (IQA)) . . . . . . . . . . . . . . . . 70
II. Strategic Planning, Performance Measurement, and Program Evaluation . . . 73
A. Inspector General Act of 1978 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
B. Government Performance and Results Act of 1993 . . . . . . . . . . . . . . . . 82
C. Clinger-Cohen Act of 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
III. Financial Management, Budget, and Accounting . . . . . . . . . . . . . . . . . . . . . 93
A. Antideficiency Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
B. Budget and Accounting Act of 1921 . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
C. Budget and Accounting Procedures Act of 1950 . . . . . . . . . . . . . . . . . 103
D. Balanced Budget and Emergency Deficit Control Act . . . . . . . . . . . . . 109
E. Budget Enforcement Acts of 1990 and 1997 . . . . . . . . . . . . . . . . . . . . 115
F. Congressional Budget and Impoundment Control Act . . . . . . . . . . . . . 122
G. Chief Financial Officers Act of 1990 . . . . . . . . . . . . . . . . . . . . . . . . . . 128
H. Government Management Reform Act of 1994 . . . . . . . . . . . . . . . . . . 135
I. Accountability of Tax Dollars Act of 2002 . . . . . . . . . . . . . . . . . . . . . . 140
J. Federal Managers’ Financial Integrity Act of 1982 . . . . . . . . . . . . . . . . 145
K. Federal Financial Management Improvement Act of 1996 . . . . . . . . . 150
L. Federal Credit Reform Act of 1990 . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
M. Federal Claims Collection Act of 1966 . . . . . . . . . . . . . . . . . . . . . . . . 164
N. Debt Collection Act of 1982 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
O. Federal Debt Collection Procedures Act of 1990 . . . . . . . . . . . . . . . . 170
P. Debt Collection Improvement Act of 1996 . . . . . . . . . . . . . . . . . . . . . 174
Q. Improper Payments Information Act of 2002 . . . . . . . . . . . . . . . . . . . 180
R. Cash Management Improvement Act (CMIA) of 1990 . . . . . . . . . . . . 187

S. User Fee Act of 1951 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
IV. Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196
A. Government Corporation Control Act . . . . . . . . . . . . . . . . . . . . . . . . . 196
B. Reorganization Act of 1977, as Amended . . . . . . . . . . . . . . . . . . . . . . 200
C. Federal Vacancies Reform Act of 1998 . . . . . . . . . . . . . . . . . . . . . . . . 204
V. Procurement and Real Property Management . . . . . . . . . . . . . . . . . . . . . . . . 209
A. Public Buildings Act of 1959 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
B. Federal Acquisition Streamlining Act of 1994 . . . . . . . . . . . . . . . . . . . 212
C. Federal Activities Inventory Reform (FAIR) Act of 1998 . . . . . . . . . . 215
D. Services Acquisition Reform Act (SARA) of 2003 . . . . . . . . . . . . . . . 218
E. Competition in Contracting Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220
F. Federal Contract Labor Standards Statutes . . . . . . . . . . . . . . . . . . . . . . 223
G. Prompt Payment Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
VI. Intergovernmental Relations Management . . . . . . . . . . . . . . . . . . . . . . . . . 228
A. Intergovernmental Cooperation Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
B. Intergovernmental Personnel Act of 1970 . . . . . . . . . . . . . . . . . . . . . . 231
C. Unfunded Mandates Reform Act of 1995 . . . . . . . . . . . . . . . . . . . . . . 234
D. Single Audit Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238
VII. Human Resources Management and Ethics . . . . . . . . . . . . . . . . . . . . . . . 243
A. Title 5: The Federal Civil Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
Title 5, Part II — Civil Service Functions and Responsibilities
(Chapters 11-15)
(1) Office of Personnel Management (Chapter 11) . . . . . . . . . . . . . . 248
(2) Merit Systems Protection Board; Office of Special Counsel;
and Employee Right of Action (Chapter 12) . . . . . . . . . . . . . . . 253
(3) Special Authority (Chapter 13) . . . . . . . . . . . . . . . . . . . . . . . . . . 257
(4) Agency Chief Human Capital Officers (Chapter 14) . . . . . . . . . . 259
(5) Political Activity of Certain State and Local Employees
(Chapter 15) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262
Title 5, Part III — Employees
(Subparts A through I, Chapters 21-99)
Subpart A, General Provisions
(6) Definitions (Chapter 21) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265
(7) Merit System Principles (Chapter 23) . . . . . . . . . . . . . . . . . . . . . 266
Subpart B, Employment and Retention
(8) Authority for Employment (Chapter 31) . . . . . . . . . . . . . . . . . . . 272
(9) Examination, Selection, and Placement (Chapter 33) . . . . . . . . . 276
(10) Part-Time Career Employment Opportunities (Chapter 34) . . . 281
(11) Retention Preference, Voluntary Separation Incentive
Payments, Restoration, and Reemployment (Chapter 35) . . . . . 283
(12) Information Technology Exchange Program (Chapter 37) . . . . 287

Subpart C, Employee Performance
(13) Training (Chapter 41) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289
(14) Performance Appraisal (Chapter 43) . . . . . . . . . . . . . . . . . . . . . 291
(15) Incentive Awards (Chapter 45) . . . . . . . . . . . . . . . . . . . . . . . . . 295
(16) Personnel Research Programs and Demonstration Projects
(Chapter 47) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297
(17) Agency Personnel Demonstration Project (Chapter 48) . . . . . . 301
Subpart D, Pay and Allowances
(18) Classification (Chapter 51) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303
(19) Pay Rates and Systems (Chapter 53) . . . . . . . . . . . . . . . . . . . . . 305
(20) Human Capital Performance Fund (Chapter 54) . . . . . . . . . . . . 309
(21) Pay Administration (Chapter 55) . . . . . . . . . . . . . . . . . . . . . . . . 312
(22) Travel, Transportation, and Subsistence (Chapter 57) . . . . . . . . 315
(23) Allowances (Chapter 59) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318
Subpart E, Attendance and Leave
(24) Hours of Work (Chapter 61) . . . . . . . . . . . . . . . . . . . . . . . . . . . 320
(25) Leave (Chapter 63) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322
Subpart F, Labor-Management and Employee Relations
(26) Labor-Management Relations (Chapter 71) . . . . . . . . . . . . . . . . 325
(27) Antidiscrimination in Employment and Employees’ Right
to Petition Congress (Chapter 72) . . . . . . . . . . . . . . . . . . . . . . . 329
(28) Suitability, Security, and Conduct (Chapter 73) . . . . . . . . . . . . 333
(29) Political Activities (Chapter 73, Subchapter III) . . . . . . . . . . . . 335
(30) Adverse Actions (Chapter 75) . . . . . . . . . . . . . . . . . . . . . . . . . . 338
(31) Appeals (Chapter 77) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340
(32) Services to Employees (Chapter 79) . . . . . . . . . . . . . . . . . . . . . 342
Subpart G, Insurance and Annuities
(33) Retirement (Chapter 83) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 344
(34) Federal Employees’ Retirement System (Chapter 84) . . . . . . . . 347
(35) Health Insurance (Chapter 89) . . . . . . . . . . . . . . . . . . . . . . . . . . 349
(36) Long-Term Care Insurance (Chapter 90) . . . . . . . . . . . . . . . . . . 352
Subpart I, Miscellaneous
(37) Personnel Flexibilities Relating to the
Internal Revenue Service (Chapter 95) . . . . . . . . . . . . . . . . . . . 356
(38) Department of Homeland Security (Chapter 97) . . . . . . . . . . . . 362
(39) Department of Defense National Security Personnel System
(Chapter 99) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367
B. Ethics in Government Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 373
C. Ethics Reform Act of 1989 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376
D. Lobbying with Appropriated Monies Act . . . . . . . . . . . . . . . . . . . . . . 379
E. Federal Tort Claims Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 382

General Management Laws: A Compendium
Introduction
Purposes
This report, General Management Laws: A Compendium (hereafter
“compendium”), is a companion to CRS Report RL32388, General Management
Laws: Major Themes and Management Policy Options, by (name redacted). In
combination, these reports have three main objectives:
!

to identify and describe the major general management laws under
which the executive branch is required to operate, including their
rationale, design, and scope;

!

to assist Members of Congress and their staff in overseeing
management of the executive branch; and

!

to help Congress when considering potential changes to the
management laws, as well as other legislation, including authorizing
statutes and appropriations.1

The compendium contains profiles of selected “general management laws” — broad
statutes designed to regulate the activities, procedures, and administration of all or
most executive branch agencies.2 The quality of the general management laws, as
well as their implementation, are considered crucial to maintaining the accountability
of the executive branch to Congress, the President, and the public. Moreover, these
laws influence the effectiveness of federal agencies when they implement, evaluate,
and help formulate public policies.
As a complement to this compendium, the General Management Laws: Major
Themes and Management Policy Options report (“companion report”) focuses on
major themes and possible management policy options for Congress that emerge
when the general management laws are viewed together, as a whole. The
compendium reflects the status of general management laws at the end of the first

1

A related report, CRS Report RL30240, Congressional Oversight Manual, describes the
major purposes, processes, techniques, and information sources for congressional oversight
of the executive branch.

2

Agencies are sometimes exempted from the coverage of specific general management laws
due to a category into which they fall (e.g., department, government corporation, etc.),
specific provisions in an agency’s authorizing statute or appropriations, or provisions in the
general management law itself.

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session of the 108th Congress, and will be updated along with the companion report
to reflect actions taken through the close of the 108th Congress.3

How the Compendium and Companion Report
Are Organized
Compendium. This compendium includes more than 90 separate entries that
describe general management laws for the executive branch. The entries are
organized into the following seven functional categories:4
Information and Regulatory Management;
Strategic Planning, Performance Measurement, and Program
Evaluation;
! Financial Management, Budget, and Accounting;
! Organization;
! Procurement and Real Property Management;
! Intergovernmental Relations Management; and
! Human Resources Management and Ethics.
!
!

Within the management field, functions typically refer to “business areas that require
related bundles of skill” or “groups of people with similar skills and performing
similar tasks.”5 (In the private sector, by way of comparison, functions often include
marketing, finance, production, and human resources.) This functional orientation
is a major theme that the companion report addresses.

3

Previous versions of this compendium, coordinated by (name redacted), reflected the status
of general management laws at the close of the 104th, 105th, and 106th Congresses,
respectively. This compendium stands on the shoulders of these efforts.
4

The listed functions are not necessarily the only way to categorize the report’s entries into
sections, which could have been aggregated differently or further broken down.
5

For more discussion of functional structures and perspectives within a management
context, see John R. Schermerhorn Jr., Core Concepts of Management (Hoboken, NJ: John
Wiley & Sons, 2004), pp. 119-120, and Peter F. Drucker, Management (New York: Harper
& Row, 1974), pp. 558-563. This usage of the term function differs from usages found in
Title 5 of the United States Code and in budgetary accounting. In Title 5, the term function
is used in several contexts, including agency strategic plans (5 U.S.C. § 306, requiring
agencies to specify goals and objectives for major functions and operations of the agency),
transfer of functions (5 U.S.C. § 3503), and reductions in force (5 U.S.C. § 3502). Title 5
does not define the term, but the implementing regulations for transfer of functions and
reductions in force define function as “all or a clearly identifiable segment of an agency’s
mission (including all integral parts of that mission), regardless of how it is performed” (5
C.F.R. § 351.203). With regard to budgetary accounting, the term function refers to
categories of federal spending, organized according to the purpose or mission of government
(e.g., income security, energy, and international affairs). The Congressional Budget and
Impoundment Control Act of 1974 established the first statutory foundation for budget
function classifications (see 2 U.S.C. § 632(a)(4) and 31 U.S.C. § 1104(c)). For background
on budget function classifications, see CRS Report 98-280, Functional Categories of the
Federal Budget, by (name redacted); and U.S. General Accounting Office,
Budget Function
Classifications: Origins, Trends, and Implications for Current Uses, GAO/AIMD-98-67,
Feb. 1998.

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Most of the compendium’s entries discuss a specific law, or in some cases,
several related laws. The “Human Resources Management and Ethics” section,
however, presents most civil service laws according to their codification in Title 5
of the United States Code — the way that practitioners and specialists typically
discuss these laws. For each entry in this compendium, one or more CRS analysts
present a brief history of the general management law in a section entitled Statutory
Intent and History, describe the law itself in a section entitled Major Provisions, and
close with a summary of key developments and issues in a Discussion section.
Finally, for readers interested in more detail, each entry cites Selected Source
Reading.
All the entries in the compendium conform to the overall structure described
above; but because the laws have different audiences, levels of complexity, and
histories, the entries sometimes differ in extent, level of detail, or emphasis.
Companion Report. In turn, as a complement to this compendium, the
companion report identifies potential management policy options for Congress.6
First, the companion report provides historical context on the roles that Congress and
the President play in managing the executive branch. Next, the companion report
briefly discusses the extent to which management in the public and private sectors
can be compared. Finally, the largest share of the companion report analyzes major
themes that run through the general management laws and identifies potential
management policy options for Congress. The themes include:

6

!

Discretion for the Executive Branch. Congress frequently faces
the issue of how much discretion to give the executive branch.
Congress has several management policy options to address
delegation situations and help balance agency flexibility with
accountability.

!

Standardization vs. Customization. Should the management laws
under which agencies operate be standardized, with rules that apply
uniformly to many different agencies? Or should some agencies
have agency-specific laws that are customized to each agency’s
internal and external environments? Or should there be a mix of the
two approaches? The report discusses advantages and disadvantages
of the different approaches and analyzes two options for Congress
when making these decisions.

!

Functional Silos vs. Integrated General Management. A
functional perspective (e.g., looking at agency operations from the
perspective of a budget officer or human resources officer) is
important, because it can boost efficiency through specialization and
ensure centralized control over strategic decisions. However, if
functional orientations become inward-looking, various functions
can operate as “silos” — in isolation from one another — resulting

CRS Report RL32388, General Management Laws: Major Themes and Management
Policy Options, by (name redacted).

CRS-4
in coordination problems or missed opportunities. The report
analyzes policy options for Congress to bring an integrated general
management perspective to solve agency management problems.
!

Making and Measuring Progress. For over two decades, many
executive branch agencies have suffered from persistent, major
management problems. Often these problems relate to areas the
general management laws were intended to address. The report
analyzes potential options for measuring and motivating agency
progress in improving management practices.

!

Agency “Chief Officers” and Interagency Councils. Statutorily
created “chief officers” (e.g., chief financial officers and chief
acquisition officers) have increased in number and importance in
federal agencies, as in the private sector. Congress also established
interagency councils of these officers. The report analyzes options
for Congress in considering whether additional chief officers and
councils should be established, and how Congress might make the
councils more accountable.

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I. Information and Regulatory Management
A. Federal Register Act
Statutory Intent and History
The Federal Register Act was originally legislated in 1935 (49 Stat. 500) to
establish accountability and publication arrangements for presidential proclamations
and executive orders and for federal agency rules and regulations. The centerpiece
of the resulting system is the Federal Register, an executive gazette produced by the
Office of the Federal Register of the National Archives and Records Administration.
It is printed by the Government Printing Office and lately has been available, as well,
in electronic formats (online and via CD-ROM).7
In many respects, the Federal Register Act of 1935 was a response to the
increasing number of regulations, rules, and related administrative actions of the New
Deal era, and the fugitive status of these instruments. The expansion of the federal
government during World War I had resulted in the presidential and agency issuance
of a growing quantity of administrative requirements. Brief experience with a gazette
— The Official Bulletin — had been beneficial, but of temporary, wartime,
duration.8 Its disappearance made a difficult situation worse. A contemporary
observer characterized the operative situation in 1920 as one of “confusion,”9 and
another described the deteriorating conditions in 1934 as “chaos.”10 During the early
days of the New Deal, administrative law pronouncements were in such disarray that,
on one occasion, government attorneys arguing a lawsuit before the Supreme Court
were embarrassed to find their case was based upon a nonexistent regulation,11 and
on another occasion, discovered they were pursuing litigation under a revoked
executive order.
The response was the mandating of the Federal Register. Produced in a
magazine format, it is now published each business day. Soon after enacting the
Federal Register Act, Congress, in 1937, amended it and inaugurated the Code of
Federal Regulations, a useful supplement to the Register (50 Stat. 304). This
cumulation of the instruments and authorities appearing in the gazette contains
almost all operative agency regulations, and is now updated annually.

7

Commercially produced electronic versions of the Federal Register are available for
purchase from private sector vendors who have introduced value-added features, such as
search capability or annotations, to the basic GPO text.

8

John Walters, “The Official Bulletin of the United States: America’s First Official
Gazette,” Government Publications Review, vol. 19, May-June 1992, pp. 243-256.

9

John A. Fairlie, “Administrative Legislation,” Michigan Law Review, vol. 18 (Jan. 1920),
p. 199.
10

Erwin N. Griswold, “Government in Ignorance of the Law — A Plea for Better
Publication of Executive Legislation,” Harvard Law Review, vol. 48 (Dec. 1934), p. 199.
11

United States v. Smith, 292 U.S. 633 (1934), appeal dismissed on the motion of the
appellant without consideration by the Court.

CRS-6
Later, the general statutory authority underlying the Federal Register was relied
upon for the creation of other series of publications — the United States Government
Manual, which has been available for public purchase since 1939; the Public Papers
of the Presidents, which were first published in 1960; and the Weekly Compilation
of Presidential Documents, which was begun in the summer of 1965.
Major Provisions
The cumulative and operative authority of the Federal Register Act may be
found in Chapter 15 of Title 44, United States Code. The Office of the Federal
Register (OFR) is mandated and the appointment of its director by the Archivist of
the United States is authorized. Responsibility for the production of the Federal
Register and the preservation of the original copies of documents published in it are
vested in the Archivist.
The original and two duplicate originals or certified copies of a document
required or authorized to be published in the Federal Register must be filed with the
OFR. Materials so filed are marked with a notation as to the date and hour of receipt.
One copy of filed materials is immediately available for public inspection at the OFR.
Filed materials are transmitted to the Government Printing Office (GPO), which
is responsible for the production and distribution of the Federal Register. The GPO
also prepares, produces, and distributes periodic cumulative indices of the daily
issues of the Register.
Documents which must be published in the Federal Register include:
!

presidential proclamations and executive orders, except those not
having general applicability and legal effect or effective only against
federal agencies or persons in their capacity as officers, agents, or
employees thereof;12

!

documents or classes of documents that the President may determine
from time to time have general applicability and legal effect;

!

documents or classes of documents that may be required to be so
published by act of Congress; and

!

other documents or classes of documents authorized to be published
by regulations prescribed with the approval of the President.

Conversely, the act declares that “comments or news items of any character may
not be published in the Federal Register” (44 U.S.C. § 1505(b)).
The requirements for filing documents for publication in the Federal Register
may be suspended by the President during “an attack or threatened attack upon the

12

The Federal Register Act states that “every document or order which prescribes a penalty
has general applicability and legal effect” (44 U.S.C. § 1505).

CRS-7
continental United States.” Such a suspension remains in effect “until revoked by the
President, or by concurrent resolution of the Congress” (44 U.S.C. § 1505(c)).
Federal Register operations are supervised by the Administrative Committee
of the Federal Register, which is chaired by the Archivist of the United States and
includes a Department of Justice officer designated by the Attorney General, and the
Public Printer. The director of the Office of the Federal Register serves as committee
secretary. This panel, with the approval of the President, prescribes the regulations
governing the Federal Register, including such matters as the documents to be
authorized by regulation for publication in the gazette, the manner and form in which
the Register is produced, and certain distribution matters and charges concerning it.
The Administrative Committee, with the approval of the President, also
supervises and manages the production of the Code of Federal Regulations. The
Code is a “complete codification of the documents of each agency of the Government
having general applicability and legal effect, issued or promulgated by the agency by
publication in the Federal Register or by filing with the Administrative Committee,
and are relied upon by the agency as authority for, or are invoked or used by it in the
discharge of, its activities or functions” (44 U.S.C. § 1510(a)). The Office of the
Federal Register prepares and publishes the codifications appearing in the Code.
The Federal Register, the Code of Federal Regulations, and other series of
publications produced pursuant to the general authority of the Federal Register Act
are available to the public through sales, OFR and other websites
([http://www.archives.gov/federal_register/index.htm]), and distribution to federal
depository libraries.
Discussion
While most major federal administrative law instruments — such as executive
orders, presidential proclamations, and agency rules and regulations — are published
in the Federal Register and Code of Federal Regulations, not all such authorities are
so produced. During the past few years, concern has been expressed from time to
time in Congress about certain national security directives of the President not being
subject to accountability or publication under the Federal Register Act. They have
been variously denominated as National Security Decision Memoranda during the
Nixon-Ford Administrations, as Presidential Directives during the Carter
Administration, as National Security Decision Directives during the Reagan
Administration, as National Security Directives during the George H. W. Bush
Administration, and as Presidential Decision Directives by the Clinton
Administration. In 1988, a House subcommittee held hearings on a proposal to
amend the Federal Register Act to provide accountability in the use of these
presidential directives. A complication in so legislating is that these instruments are
usually all security classified. Another type — Homeland Security Presidential
Directives — was launched by President George W. Bush in late October 2002. This
development sparked renewed congressional concern about accountability for these
presidential directives.

CRS-8
Selected Source Reading
U.S. Congress. House. Committee on Government Operations. Executive Orders
and Proclamations: A Study of a Use of Presidential Powers. Committee print.
85th Congress, 1st session. Washington: GPO, 1957.
——. Presidential Directives and Records Accountability Act. Hearing on H.R.
5092. 100th Congress, 2nd session. Washington: GPO, 1989.
CRS Report 98-611. Presidential Directives: Background and Overview, by (name
redacted).
U.S. National Archives and Records Administration. Office of the Federal Register.
Code of Federal Regulations: Title 1 — General Provisions. Washington:
GPO, 1997.
(name redacted)

CRS-9

B. Administrative Procedure Act
Statutory Intent and History
With the advent of the New Deal, greater expectations and reliance were placed
upon the federal government for the achievement of certain political and social
objectives. This required the development of both an expanded administrative law
process and new regulatory agencies. Unlike a number of European states at that
time, the United States did not have in place a sophisticated administrative system
and had to build one. The first step was the passage of the Federal Register Act
(described elsewhere in this compendium) in 1935, which required all federal
agencies to publish notice of their rules, proposed rules, and legal notices in a single,
readily available source, later to be known as the Federal Register.
Although substantial progress was made in uniform public notice and
publication processes for regulation making by the agencies, a single general
management law covering all the agencies was not passed until after World War II.
The Administrative Procedure Act (APA; 60 Stat. 237; 5 U.S.C. § 551 et seq.),
enacted in 1946, is considered the seminal federal administrative legislation of the
modern era. The major contribution of the act was to establish for the first time
minimum procedural requirements for certain types of agency decision making
processes. Its general purposes were to (1) require agencies to keep the public
currently informed of agency organization, procedures, and rules; (2) provide for
public participation in the rulemaking process; (3) prescribe uniform standards for
the conduct of formal rulemaking and adjudicatory proceedings (i.e., proceedings
required by statute to be made on the record after opportunity for agency hearing);
and (4) restate the law of judicial review of agency action.
The act imposes on agencies certain requirements for two modes of agency
decision making: rulemaking and adjudication. In general, the term agency refers to
any authority of the government of the United States, whether or not it is within, or
subject to review by, another agency. Congress, the courts, and the governments of
territories, possessions, and the District of Columbia are excluded.
Major Provisions
The APA has two major subdivisions: Sections 551-559, dealing with general
agency procedures, and Sections 701-706, dealing with judicial review. In addition,
several sections dealing with administrative law judges are scattered throughout Title
5 (Sections 1305, 3105, 3344, 5372, and 7521).
The structure of the APA is shaped around the distinction between rulemaking
and adjudication, with different schemes of procedural requirements prescribed for
each. Rulemaking is agency action that formulates the future conduct of persons,
through the development and issuance of an agency statement designed to implement,
interpret, or prescribe law or policy. It is essentially legislative in nature because of
its future general applicability and its concern for policy considerations.
Adjudication, on the other hand, is concerned with determination of past and present
rights and liabilities. The result of an adjudicative proceeding is the issuance of an
order.

CRS-10
Beyond the distinction between rulemaking and adjudication, the APA
subdivides each of these categories of agency action into formal and informal
proceedings. Whether a particular rulemaking or adjudicatory proceeding is
considered to be “formal” depends on whether the proceeding is required by statute
to be “on the record after opportunity for an agency hearing” (5 U.S.C. § 553(c), §
554(a)). The act prescribes elaborate procedures for both formal rulemaking and
formal adjudication, and relatively minimal procedures for informal rulemaking.
Virtually no procedures are prescribed by the APA for the remaining category of
informal adjudication, which is by far the most prevalent form of governmental
action.
Rulemaking. Section 553 sets the requirements for informal rulemaking (also
known as notice and comment rulemaking). An agency must publish a notice of
proposed rulemaking in the Federal Register, afford interested persons an
opportunity to participate in the proceeding through the submission of written
comments or, at the discretion of the agency, by oral presentation, and when
consideration of the matter is completed, incorporate in the rules adopted “a concise
general statement of their basis and purpose” (5 U.S.C. § 553(c)). A final rule must
be published in the Federal Register “not less than 30 days before its effective date”
(5 U.S.C. § 553(d)). Interested persons have a right to petition for the issuance,
amendment or repeal of a rule (5 U.S.C. § 553(e)). Although the APA does not
specify a minimum period for public comment, at least 30 days have been
traditionally allotted. More recently, Executive Order 1286613 has prescribed that
covered agencies allow at least 60 days. Agencies are free to grant additional
procedural rights, and Congress has at times particularized requirements for certain
agencies or programs.
The APA also provides for formal rulemaking, a procedure employed when
rules are required by statute to be made on the record after an opportunity for agency
hearing. Essentially, this procedure requires that the agency issue its rule after the
kind of trial-type hearings procedures normally reserved for adjudicatory orders
(discussed below).
Adjudication. Sections 554, 556, and 557 apply to formal adjudications (i.e.,
cases for which an adjudicatory proceeding is required by statute to be determined
on the record after an agency proceeding). Sections 556 and 557 spell out the
specific procedures to be utilized in formal adjudication. In brief, a trial type hearing
must be held, presided over by members of the agency or an administrative law judge
(ALJ). Section 556 prescribes the duties of ALJs, the allocation of burden of proof,
and parties’ rights to cross-examination. Section 557 provides that an ALJ must
issue an initial decision, which becomes the agency’s final decision if not appealed.
The record must show the ruling on each finding, conclusion, or exception raised.
Ex parte communications relevant to the merits of a pending formal agency
proceeding are prohibited.
Judicial Review of Agency Action. Sections 701-706 constitute a general
restatement of the principles of judicial review embodied in many statutes and

13

3 C.F.R., 1993 Comp., pp. 638-649.

CRS-11
judicial decisions; however, they leave the mechanics regarding judicial review to be
governed by other statutes or court rules.
Section 701 establishes a presumption of reviewability of agency actions by
providing that the action “of each authority of the Government of the United States”
is subject to judicial review except where “statutes preclude judicial review,” or
“where agency action is committed to agency discretion by law” (Section
701(a)(1),(2)). The Supreme Court has consistently supported the strong
presumption of reviewability, requiring a “showing of ‘clear and convincing’
evidence of a ... legislative intent to restrict access to judicial review.” (Citizens to
Protect Overton Park v. Volpe, 401 U.S. 402, 410 (1971); Abbott Laboratories v.
Gardner, 387 U.S. 136, 141 (1967); Bowen v. Michigan Academy of Family
Physicians, 476 U.S. 667, 681 (1986)). Moreover, the exception for actions
“committed to agency discretion” is narrowly construed and is applicable only in
“rare instances where statutes are drawn in such broad terms that in a given case,
there is no law to apply” (Volpe, supra, 401 U.S. at 410).
A challenge may be brought by any person who is “adversely affected or
aggrieved” by the action “within the meaning of the relevant statute” (5 U.S.C. §
702). Courts deciding the standing of a person challenging a rule also must comply
with the limitations on federal court jurisdiction imposed by the “case or
controversy” requirement of Article III of the Constitution, which has been
interpreted to require that a party bringing an action in federal court demonstrate an
“injury in fact,” caused by the violation of a legally protected interest, that is concrete
and particularized, and actual or imminent, as opposed to conjectural or hypothetical
(see Valley Forge Christian College v. Americans United for Separation of Church
and State, 454 U.S. 473 (1982); see also Lujan v. Defenders of Wildlife, 504 U.S. 555
(1992)). In addition, parties seeking to establish constitutional standing are required
to show that their injury “fairly can be traced to the challenged action” and that the
injury is likely to be redressed by a favorable judicial decision (Allen v. Wright, 468
U.S. 737 (1984); Valley Forge, supra, at 472). A person challenging an agency rule
who satisfies Section 702*s test is also likely to satisfy the injury requirement for
constitutional standing. Indeed, courts typically merge their discussions of Section
702*s “adversely affected or aggrieved” language with the constitutional injury
requirement (see, e.g., Wilderness Society v. Griles, 824 F.2d 4, 11 (D.C. Cir.
1987)).
In addition to constitutional requirements, the judiciary has developed prudential
rules to constrain the instances in which review may be obtained. Like their
constitutional counterparts, these judicially imposed limits on the exercise of federal
jurisdiction are “founded in concern about the proper — and properly limited — role
of the courts in a democratic society” (see Warth v. Seldin, 422 U.S. 490, 498
(1974)). However, unlike their constitutional counterparts, they may be modified or
abrogated by Congress. The prudential components of the standing doctrine require
that (1) a plaintiff assert his own legal rights and interests rather than those of third
parties; (2) a plaintiff’s complaint be encompassed by the “zone of interests”
protected or regulated by the constitutional or statutory guarantee at issue; and (3)
courts decline to adjudicate “‘abstract questions of wide public significance’ which
amount to ‘generalized grievances’ pervasively shared and most appropriately
addressed in the representative branches” (Valley Forge, supra, at 472).

CRS-12
Any standing inquiry is further complicated in instances when an organization
seeks to challenge agency action. An organization may have standing to sue if it has
been injured as an entity, and may likewise possess standing to sue on behalf of its
members, so long as the members would otherwise have standing to sue in their own
right; the interests the organization seeks to protect are germane to its purpose; and
neither the claim asserted nor the relief requested requires the participation of
individual members (see Hunt v. Washington State Apple Advertising Commission,
432 U.S. 333, 343 (1977)).
The forum for judicial review of agency rules is determined by statute. Statutes
containing judicial review provisions applicable to rulemaking generally call for
direct, pre-enforcement review in the courts of appeals, and usually specify
requirements as to venue, timing of review, and scope of review. If there is no
specifically applicable judicial review provision governing the agency’s rule, a
challenge to the rule will normally be through an action for an injunction or
declaratory relief in a district court. Jurisdiction must be obtained through one of the
general jurisdictional statutes, the most frequently asserted being 28 U.S.C. § 1331,
the so-called “federal question” provision, which gives district courts “original
jurisdiction of all civil actions wherever the matter in controversy ... arises under the
Constitution, laws, or treaties of the United States.” Other jurisdictional provisions
that may be used are 28 U.S.C. § 1337 (actions arising under commerce-related
statutes) and 28 U.S.C. § 1361 (mandamus jurisdiction).
Section 706 sets forth the scope of review of agency actions. In general, the
scope of review depends on the nature of the agency determination under challenge.
Agency conclusions on questions of law are reviewed de novo. When a court
reviews an agency’s construction of a statute it administers, the court is required to
uphold Congress’s intent where Congress has directly spoken to the precise statutory
question at issue. If the statute is silent or ambiguous with respect to the specific
issue, however, the agency’s interpretation of the statute must be upheld if the
agency’s construction of the statute is permissible (see Chevron U.S.A. v. NRDC, 467
U.S. 837 (1984)). The Supreme Court has clarified the limits of this standard, ruling
that Chevron deference applies only in instances when Congress has delegated
authority to an agency to make rules carrying the force of law, and when the agency
interpretation claiming deference was promulgated pursuant to that authority (see
United States v. Mead Corp., 533 U.S. 218, 229 (2001)).
Agency exercises of judgment or discretion, such as in informal rulemaking or
informal adjudication, are reviewed under the “arbitrary, capricious, abuse of
discretion” standard. Under this standard, an agency determination will be upheld
if it is rational, based on a consideration of the relevant factors, and within the scope
of the authority delegated to the agency by Congress. The agency must examine the
relevant data and articulate a satisfactory explanation for its action, including a
rational connection between the facts found and the choices made. A court is not to
substitute its judgment for that of the agency (see Motor Vehicle Mfr’s Assoc. v.
State Farm Mut. Auto Ins. Co., 463, U.S. 29, 42-43 (1983)).
Agency determinations of fact, typically in challenges of agency adjudications,
are reviewed under the “substantial evidence” test when the agency determination is
reviewed on the record of an agency proceeding required by statute (see Consolo v.

CRS-13
FMC, 383 U.S. 607, 618-21 (1966)), citing (Universal Camera v. NLRB, 340 U.S.
474 (1951)).
Discussion
The APA retains its preeminence as the general management law governing
agency decisionmaking by means of rulemaking and adjudication. Essentially
unamended by Congress since 1946, it has maintained its vitality in the face of vast
and fundamental changes in the nature and scope of federal government
responsibilities. In great measure this accommodation has come about because of
judicial rulings that have effected important transformations of the meaning and
scope of its otherwise neutral and spare terminology. The hallmark of our modern
administrative state — agency rulemaking through the process of informal
rulemaking — is a creative judicial cultivation. With the encouragement of the
courts, rulemaking replaced adjudication as the dominant formal decision making
process. Administrative lawmaking was “democratized” in a series of decisions
between 1965 and 1983 that expanded both the obligations of agencies and the role
of reviewing courts. The result has been the transformation, without benefit of
legislative amendment, of informal rulemaking into a new, on-the-record proceeding
that has fostered widespread public participation in the process.
To be sure, Congress has not simply silently acquiesced in this revolutionary
transformation. Although Congress has never undertaken a comprehensive revision
of the APA, it has always recognized that it could do so, and with increasing
frequency, it has supplanted the APA’s requirements with more explicit directives
for particular agencies and programs mirroring the above-described judicial
innovations. Often this legislation has been aimed at formalizing the procedural
protections ensuring effective and meaningful public participation in agency
policymaking. Thus, certain health, environmental, and consumer protection statutes,
for example, contain detailed “hybrid-rulemaking” requirements and procedural as
well as substantive changes.14
Moreover, the deregulation movement of the 1970s and 1980s successfully
focused attention on the economic consequences of regulation and the need for a
broader analytic approach to regulatory decision making that assessed the impacts of
costs and new technologies. The executive branch took the lead by adding new
layers of clearances for rules by executive order that included requirements for
consideration and evaluation of their costs and benefits. (See Executive Orders
12291, 12498, and 12866).15 Proposed regulatory reform legislation in recent
Congresses has included bills that not only would have codified the judicially created
procedural requirements of the last two decades, but also would have required all

14

See, e.g., 42 U.S.C. § 300g-1(d) (requiring public hearing prior to the promulgation of
regulations pursuant to the Safe Drinking Water Act); 15 U.S.C. § 2605 (providing for
public hearing and opportunity for cross-examination of witnesses prior to promulgation of
regulations under the Toxic Substances Control Act); and 15 U.S.C. § 2058 (providing for
a public hearing before promulgation of rules under the Consumer Product Safety Act).

15

See 3 C.F.R., 1981 Comp., pp. 127-134; 3 C.F.R., 1985 Comp., pp. 323-325; and 3 C.F.R.,
1993 Comp., pp. 638-649, respectively.

CRS-14
agencies engaged in rulemaking to utilize methodologies requiring detailed risk
assessment and cost benefit analysis for major regulations which would have been
subjected to intense judicial review. While these particular reform efforts have been
unsuccessful, Congress has passed several notable measures, including a mechanism
that subjects all agency rules to congressional review and possible veto; a procedure
to require the General Accounting Office to conduct an independent evaluation of an
agency’s cost-benefit analysis of a proposed or final rule when requested by a chair
or ranking member of a committee of jurisdiction; a process designed to restrict
regulations imposing unfunded costs on state and local governments and the private
sector; and a process designed to ensure that federal agencies use and disseminate
accurate information. There is also an emerging and controversial trend on the part
of agencies to attempt to enhance public participation in the administrative process
by accepting electronically submitted comments.
While the APA’s basic rulemaking model is relatively straightforward, it has
been argued that the additional requirements that have been imposed by Congress,
the executive branch, and the courts have made the rulemaking process rigid and
burdensome upon agencies. In turn, this has led to the argument that rulemaking has
become “ossified,” with agencies either undertaking resource and time intensive steps
to ensure that a rule will withstand increased scrutiny, or simply circumventing the
traditional rulemaking process by issuing policy statements and interpretive rules to
effectuate compliance with a regulatory agenda. Ultimately, however, it would appear
that the current APA scheme is likely to continue to be the key vehicle for
formulating and implementing agency policy directives.
Selected Source Reading
Aman, Alfred C. Jr., and William T. Mayton. Administrative Law and Process.
New York: Matthew Bender, 1993.
Johnson, Stephen M. “The Internet Changes Everything: Revolutionizing Public
Participation and Access to Government Information Through the Internet.”
Administrative Law Review, vol. 50 (spring 1998), pp. 277-337.
Kerwin, Cornelius M. Rulemaking: How Government Agencies Write Law and Make
Policy, 2nd ed. Washington: CQ Press, 1999.
Koch, Charles H. Administrative Law and Practice, 2nd ed., 3 vols. St. Paul, MN:
West Publishing Co., 1997.
Lubbers, Jeffrey S. A Guide to Federal Rulemaking, 3rd ed. Washington: American
Bar Association, 1998.
McGarity, Thomas O. “Some Thoughts on ‘Deossifying’ the Rulemaking Process.”
Duke Law Journal, vol. 41, 1992, pp. 1385-1462.
O’Reilly, James T. “The 411 on 515: How OIRA’s Expanded Information Roles in
2002 Will Impact Rulemaking and Agency Publicity Actions.” Administrative
Law Review, vol. 54 (spring 2002), pp. 835-851.

CRS-15
Pierce, Richard J. Jr. “Seven Ways to Deossify Agency Rulemaking.”
Administrative Law Review, vol. 47 (winter 1995), pp. 59-95.
Shepherd, George B. “Fierce Compromise: The Administrative Procedure Act
Emerges From New Deal Politics.” Northwestern University Law Review, vol.
90 (1996), pp. 1557-1683.
Verkuil, Paul R. “Comment: Rulemaking Ossification — A Modest Proposal.”
Administrative Law Review, vol. 47 (summer 1995), pp. 453-459.
CRS Report RL32339, Federal Regulations: Efforts to Estimate Total Costs and
Benefits of Rules, by (name redacted).
CRS Report RL32356, Federal Regulatory Reform: An Overview, by (name red
acted).
CRS Report RL32240, The Federal Rulemaking Process: An Overview, by (name red
acted).
(name redacted)
(name redacted)

CRS-16

C. Federal Records Act and Related Chapters of Title 44
Statutory Intent and History
Proper maintenance of federal records within the departments and agencies has
been legislatively addressed by Congress since the earliest days of the republic.
When chartering the initial departments, for example, Congress authorized the heads
of these entities to issue regulations for, among other matters, the custody, use, and
preservation of the records, papers, and property.16 It was also the responsibility of
these officials to ensure that these regulations were observed in practice.
Through the years, Congress from time to time legislated additional
requirements and administrative arrangements concerning federal records. In 1934,
for instance, a major step was taken with the mandating of the National Archives (48
Stat. 1122).17 The head of this entity, the Archivist of the United States, has
subsequently become a major policy leader regarding the entire life cycle of federal
records, including their (1) creation or collection; (2) processing; (3) transmittal,
including access and dissemination; (4) use; (5) active storage; (6) inactive storage;
and (7) final disposition.18
The Federal Records Act of 1950 (64 Stat. 583) was another milestone. While
it is most often remembered for its placement of the Archivist and the National
Archives under the authority of the Administrator of the General Services
Administration,19 among the statute’s important innovations were:
!

creation of the National Historical Publications Commission to
“make plans, estimates, and recommendations for such historical
works and collections of sources as it deems appropriate for printing
or otherwise recording at the public expense ... [and to] cooperate
with and encourage both governmental and nongovernmental
institutions, societies, and individuals in collecting and preserving
and, when it deems such action to be desirable, in editing and
publishing the papers of outstanding citizens of the United States
and such other documents as may be important for an understanding
and appreciation of the history of the United States” (44 U.S.C. §§
2501-2506);

16

See, for example, 1 Stat. 28, 49, and 65; these and similar provisions were consolidated
in the Revised Statutes of the United States (1878) at Section 161, which is presently located
in the United States Code at 5 U.S.C. § 301.
17

The National Archives was rechartered in the National Archives and Records
Administration Act of 1984 (98 Stat. 2280), which largely constitutes Chapter 21 of Title
44 of the United States Code.
18

Peter Hernon, “Information Life Cycle: Its Place in the Management of U.S. Government
Information Resources,” Government Information Quarterly, vol. 11, 1994, pp. 143-170.
19

This relationship ended in 1984 when the National Archives was restored to the status of
an independent agency within the executive branch.

CRS-17
!

authorizing the analysis, development, promotion, and coordination
of standards, procedures, and techniques “designed to improve the
management of records, to insure the maintenance and security of
records deemed appropriate for preservation, and to facilitate the
segregation and disposal of records of temporary value,” and other
related actions (44 U.S.C. §§ 2904-2906);

!

authorizing the establishment, maintenance, and operation of records
centers “for the storage, processing, and servicing of records for
Federal agencies pending their deposit with the National Archives
of the United States or their disposition in any other manner
authorized by law” (44 U.S.C. § 2907);

!

prescribing the records management responsibilities of agency heads
(44 U.S.C. §§ 3101-3107); and

!

prescribing archival administration responsibilities for the deposit of
federal agency and congressional records “determined by the
Archivist to have sufficient historical or other value to warrant their
continued preservation by the United States Government” in the
National Archives, and other related actions (44 U.S.C. §§ 21072111).

The provisions of the Federal Records Act and those of subsequent records
management statutes are largely codified in chapters of Title 44 of the United States
Code.
Major Provisions
Within Title 44 of the United States Code, Chapters 21, 22, 29, 31, and 33
contain major provisions of records management law. The first of these, Chapter 21,
after prescribing the establishment, organization, and principal leadership of the
National Archives and Records Administration, specifies certain general authority,
duties, and responsibilities of the Archivist. These include procedures and conditions
for the acceptance of records for historical preservation; responsibility for the
custody, use, and withdrawal of records transferred to the Archives; responsibilities
for the preservation, arrangement, duplication, and exhibition of records by the
Archivist; and the procedures and conditions governing the establishment of a
presidential archival depository or presidential library to be accepted and maintained
by the Archivist.20
Chapter 22 contains the provisions of the Presidential Records Act of 1978 (92
Stat. 2523), which marked a major change in federal policy on the custody and
preservation of presidential records. As a consequence of the Watergate incident and
related matters, the official papers and records of President Richard Nixon were

20

Concerning the acceptance and maintenance of presidential archival depositories by the
Archivist, see CRS Report RS20825, Presidential Libraries: The Federal System and
Related Legislation, by (name redacted).

CRS-18
placed under federal custody by specially legislated arrangements — the Presidential
Recordings and Materials Preservation Act of 1974 (88 Stat. 1695). This statute
requires that these materials remain in Washington, DC, where they are maintained
under the supervision of the Archivist. Thus, Nixon neither could take his
presidential records and documents with him when he left office, nor could place
them in a presidential library outside the nation’s capital.
This 1974 statute also created the temporary National Study Commission on
Records and Documents of Federal Officials (88 Stat. 1698). The panel was tasked
“to study problems and questions with respect to the control, disposition, and
preservation of records and documents produced by on behalf of Federal officials,
with a view toward the development of appropriate legislative recommendations and
other recommendations regarding appropriate rules and procedures with respect to
such control, disposition, and preservation.” Its final report was issued in March
1977.21
Responding partly to some of the commission’s recommendations, Congress
legislated the Presidential Records Act in 1978. After defining “presidential
records,” the statute specifies that all such materials created on or after January 20,
1981, are subject to its provisions. It effectively made presidential records federal
property, to remain under the custody and control of the Archivist when each
incumbent President left the White House. Jimmy Carter was the last occupant of
the Oval Office who could freely take away his records and papers.
Chapter 29, setting out the records management authority and responsibilities
of the Archivist and the Administrator of General Services, contains core provisions
from the Federal Records Act of 1950. Specified here are the objectives of federal
records management, the two officials’ general responsibilities for records
management, and the Archivist’s authority to establish standards for the selective
retention of records, inspect agency records, and establish, maintain, and operate
records centers.
Chapter 31, also containing core provisions from the Federal Records Act,
prescribes the records management responsibilities of the federal agencies, including
the general duties of agency heads, the requirement to establish and maintain “an
active, continuing program for the economical and efficient management of the
records of the agency,” and certain related procedural matters.
Chapter 33 is devoted to the disposal of federal records. It authorizes the
Archivist to issue regulations and utilize a system of records lists and disposition
schedules to eliminate non-current agency records lacking preservation value.

21

U.S. National Study Commission on Records and Documents of Federal Officials, Final
Report of the National Study Commission on Records and Documents of Federal Officials
(Washington: GPO, 1977). Also see Anna Kasten Nelson, “The Public Documents
Commission: Politics and Presidential Records,” Government Publications Review, vol. 9,
Sept./Oct. 1982, pp. 431-451.

CRS-19
Discussion
Most of the existing statutory law concerning records management was
developed when paper formats dominated federal recordkeeping and production.
During the past few decades, the adequacy of this authority has come into question
as electronic forms and formats have become more prevalent. The many challenges
of the electronic record phenomenon continue to be discussed and evaluated.
General Records Schedule (GRS) 20, a primary, government-wide, records
management directive, has been revised recently, and efforts are underway to develop
an electronic records archive at the National Archives.
Selected Source Reading
National Research Council. Building an Electronic Records Archive at the National
Archives and Records Administration: Recommendations for Initial
Development. Washington: National Academies Press, 2003.
U.S. National Archives and Records Administration.
Records. Washington: GPO, 1992.

Disposition of Federal

——. Guide to Record Retention Requirements in the Code of Federal Regulations.
Washington: GPO, 1986.
(name redacted)

CRS-20

D. Congressional Review of Regulations Act
Statutory Intent and History
The Supreme Court’s acceptance in 1937 of the New Deal’s rejection of passive,
minimalist governance, and its replacement by a more activist governmental
philosophy, signaled the beginning of the era of the administrative state that has seen
the emergence of a pattern of pervasive governmental economic and social
regulation. Since 1937, an unbroken line of Supreme Court and lower court
decisions has provided legitimacy for broad delegations of congressional power to
the executive, and has fostered and nurtured the hallmark of the modern
administrative state, agency lawmaking through the process of informal rulemaking.
With the encouragement of the courts, rulemaking has replaced adjudication as the
dominant formal administrative decision making process.
The necessity to delegate increasing amounts of legislative power to
administrative agencies to accomplish the expanded objective of government, while
at the same time maintaining congressional control and responsibility over the
exercise of the delegated authority, created a constitutional tension, however. This
tension has been manifested over the years by a variety of legislative attempts to
develop a review mechanism that would allow Congress to exercise its oversight
responsibility to assure agency accountability in the exercise of delegated authority.
Initially, Congress increasingly relied on the legislative veto, a device that allowed
it to delegate power conditionally and to retrieve it, or block agency exercise of its
delegated authority, by the action of both houses, one house, a committee, or, at
times, by a committee chairman alone. In 1983, in INS v. Chadha (462 U.S. 919
(1983)), the Supreme Court found all such veto mechanisms to be an unconstitutional
exercise of legislative power because of their failure to follow the Constitution’s
exclusive prescription for lawmaking: bicameral passage and presentment to the
President for his signature or veto.
The immediate consequence of the Supreme Court’s ruling was to force
Congress to rely more heavily on its traditional mechanisms of control of
administrative action, such as the authorization and appropriations process,
committee oversight and investigations, and the confirmation process as means of
restraining perceived regulatory excesses. In addition, regulatory reform proposals
throughout the 1980s and 1990s consistently contained requirements that agencies
perform cost-benefit, cost-effectiveness and risk assessment analyses as integral parts
of their rulemaking processes.
None of these government-wide reforms succeeded until the enactment of the
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; 110 Stat.
857-874). Subtitle E of the act for the first time established a mechanism by which
Congress can disapprove, on a fast-track, virtually all federal agency rules. Failure
to report a covered rule for congressional review will prevent the rule from becoming
effective. The effectiveness of major rules is stayed for 60 days to allow for
congressional scrutiny. A rule vetoed by the passage of a joint resolution of
disapproval is deemed never to have been effective and an agency may not propose
to issue a substantially similar rule without further congressional authorization.

CRS-21
However, a number of unresolved interpretive issues, as well as certain structural
problems, have limited the effectiveness of this review mechanism.
Major Provisions
The congressional review mechanism, codified at 5 U.S.C. §§ 801-808, requires
that all agencies promulgating a covered rule must submit a report to each house of
Congress and to the Comptroller General (CG) that contains a copy of the rule, a
concise general statement describing the rule (including whether it is deemed to be
a major rule), and the proposed effective date of the rule. A rule cannot take effect
if the report is not submitted (Section 801(a)(1)(A)). Each house must send a copy
of the report to the chairman and ranking minority member of each jurisdictional
committee (Section 801(a)(1)(C)). In addition, the promulgating agency must submit
to the CG (1) a complete copy of any cost-benefit analysis; (2) a description of the
agency*s actions pursuant to the requirements of the Regulatory Flexibility Act and
the Unfunded Mandates Reform Act of 1995; and (3) any other relevant information
required under any other act or executive order. Such information must also be made
“available” to each house (Section 801(a)(1)(B)).
Section 804(3) adopts the definition of rule found at 5 U.S.C. § 551(4) which
provides that the term “means the whole or part of an agency statement of general ...
applicability and future effect designed to implement, interpret, or prescribe law or
policy.”22 The legislative history of Section 551 (4) indicates that the term is to be
broadly construed: “The definition of rule is not limited to substantive rules, but
embraces interpretive, organizational and procedural rules as well.”23 The courts
have recognized the breadth of the term, indicating that it encompasses “virtually
every statement an agency may make,”24 including interpretive and substantive rules,
guidelines, formal and informal statements, policy proclamations, and memoranda
of understanding, among other types of actions.25 Thus a broad range of agency
action is potentially subject to congressional review.

22

Section 804(3) excludes from the definition “(A) any rule of particular applicability,
including a rule that approves or prescribes for the future rates, wages, prices, services, or
allowance therefore, corporate or financial structures, reorganizations, mergers, or
acquisitions thereof, or accounting practices or disclosures bearing on any of the foregoing;
(B) any rule relating to agency management or personnel; or (C) any rule of agency
organization, or practice that does not substantially affect the rights or obligations of nonagency parties.”
23

U.S. Attorney General, Manual on the Administrative Procedure Act, 13 (1948).

24

Avoyelles Sportsmen’s League, Inc., v. Marsh, 715 F.2d 897 (5th Cir. 1983).

25

See, for example, Chem Service, Inc. v. EPA, 12 F.3d 1256 (3rd Cir. 1993)(memorandum
of understanding); Caudill v. Blue Cross and Blue Shield of North Carolina, 999 F.2d 74
(4th Cir. 1993)(interpretative rules); National Treasury Employees Union v. Reagan, 685
F.Supp 1346 (E.D. La 1988)(federal personnel manual letter issued by the Office of
Personnel Management); New York City Employment Retirement Board v. SEC, 45 F.3d 7
(2nd Cir. 1995)(affirming lower court’s ruling that SEC “no action” letter was a rule within
Section 551(4)).

CRS-22
The Comptroller General and the administrator of the Office of Information and
Regulatory Affairs (OIRA) of the Office of Management and Budget have particular
responsibilities with respect to a “major rule,” defined as a rule that will likely have
an annual effect on the economy of $100 million or more, increase costs of
processing for consumers, industries, or state and governments, or have significant
adverse effects on the economy. The determination of whether a rule is major is
assigned exclusively to the OIRA administrator (Section 804(2)). If a rule is deemed
major by the OIRA administrator, the CG must prepare a report for each
jurisdictional committee within 15 calendar days of the submission of the agency
report required by Section 801 (a)(1) or its publication in the Federal Register,
whichever is later. The statute requires that the CG’s report “shall include an
assessment of the agency’s compliance with the procedural steps required by Section
801(a)(1)(B).” However, the CG has interpreted his duty under this provision
narrowly as requiring that he simply determine whether the prescribed action has
been taken, i.e., whether a required cost-benefit analysis has been provided, and
whether the required actions under the Regulatory Flexibility Act, the Unfunded
Mandates Reform Act of 1995, and any other relevant requirements under any other
legislation or executive orders were taken, not whether the action was properly done
or was in accord with congressional intent.
The designation of a rule as major also affects its effective date. A major rule
may become effective on the latest of the following scenarios: (1) 60 days after
Congress receives the report submitted pursuant to Section 801(a)(1) or after the rule
is published in the Federal Register; (2) if Congress passes a joint resolution of
disapproval and the President vetoes it, the earlier of when one house votes and fails
to override the veto, or 30 days after Congress receives the message; or (3) the date
the rules would otherwise have taken effect (unless a joint resolution is enacted)
(Section 801(a)(3)).
Thus, the earliest a major rule can become effective is 60 days after the
submission of the report required by Section 801(a)(1) or its publication in the
Federal Register, unless some other provision of the law provides an exception for
an earlier date. Three possibilities exist. Under Section 808(2) an agency may
determine that a rule should become effective notwithstanding Section 801(a)(3)
where it finds “good cause in that notice and public procedure thereon are
impracticable, unnecessary, or contrary to the public interest.” Second, the President
may determine that a rule should take effect earlier because of an imminent threat to
health or safety or other emergency; to insure the enforcement of the criminal laws;
for national security purposes; or to implement an international trade agreement
(Section 801(c)). Finally, a third route is available under Section 801(a)(5), which
provides that “the effective date of a rule shall not be delayed by operation of this
chapter beyond the date on which either House of Congress votes to reject a joint
resolution of disapproval under Section 802.” All other rules take effect “as
otherwise allowed by law,” after having been submitted to Congress under Section
801(a)(1) (Section 801(a)(4)).
All covered rules are subject to disapproval even if they have gone into effect.
Congress has reserved to itself a review period of at least 60 days. Moreover, if a
rule is reported within 60 session days of the Senate or 60 legislative days of the
House prior to the date Congress adjourns a session of Congress, the period during

CRS-23
which Congress may consider and pass a joint resolution of disapproval is extended
to the next succeeding session of Congress (Section 801(d)(1)). Such held-over rules
are treated as if they were published on the 15th session day of the Senate and the 15th
legislative day of the House in the succeeding session, and as though a report under
Section 801(a)(1) was submitted on that date (Section 801(d)(2)(A), (e)(2)). But a
held-over rule takes effect as otherwise provided (Section 801(d)(3)). Only the
opportunity to consider and disapprove is extended.
If a joint resolution of disapproval is enacted into law, the rule is deemed not to
have had any effect at any time (Section 801(f)). If a rule that is subject to any
statutory, regulatory, or judicial deadline for its promulgation is not allowed to take
effect, or is terminated by the passage of a joint resolution, any deadline is extended
for one year after the date of enactment of the joint resolution (Section 803). A rule
that does not take effect, or is not continued because of passage of a disapproval
resolution, may not be reissued in substantially the same form. Indeed, any reissued
or new rule that is “substantially the same” as a disapproved rule cannot be issued
unless it is specifically authorized by a law enacted subsequent to the disapproval of
the original rule (Section 801(b)(2)).
Section 802(a) provides a process for an up-or-down vote on a joint resolution
of disapproval within a 60-day period (excluding days when either house is adjourned
for more than three days). The period begins running either on the date on which the
Section 801(a)(1) report is submitted, or when the rule is published in the Federal
Register, whichever is later.
The law spells out an expedited consideration procedure for the Senate. If the
committee to which a joint resolution is referred has not reported it out within 20
calendar days, it may be discharged from further consideration by a written petition
of 30 Members of the Senate, at which point the measure is placed on the calendar.
After committee report or discharge, it is in order at any time for a motion to proceed
to consideration. All points of order against the joint resolution (and against
consideration of the measure) are waived, and the motion is not subject to
amendment or postponement, or to a motion to proceed to other business. If the
motion to consider is agreed to, it remains as unfinished business of the Senate until
disposed of (Section 802(d)(1)). Debate on the floor is limited to 10 hours.
Amendments to the resolution and motions to postpone or to proceed to other
business are not in order (Section 802(d)(2)). At the conclusion of debate, an up-ordown vote on the joint resolution is to be taken (Section 802(d)(3)).
There is no special procedure for expedited consideration and processing of
joint resolutions in the House. But if one house passes a joint resolution before the
other house acts, the measure of the other house is not referred to a committee. The
procedure of the house receiving a joint resolution “shall be the same as if no joint
resolution had been received from the other house, but the vote on final passage shall
be on the joint resolution of the other house” (Section 802(f)(1)(2)).
Section 805 precludes judicial review of any “determination, finding, action or
omission under this chapter.” This would insulate from court review, for example,
a determination by the OIRA administration that a rule is major or not, a presidential
determination that a rule should become effective immediately, an agency

CRS-24
determination that “good cause” requires a rule to go into effect at once, or a question
as to the adequacy of a Comptroller General’s assessment of an agency’s report.
Discussion
As of January 14, 2004, the Comptroller General had submitted reports pursuant
to Section 801(a)(2)(A) to Congress on 488 major rules.26 In addition, GAO has
cataloged the submission of 32,865 non-major rules as required by Section
801(a)(1)(A). To date, 29 joint resolutions of disapproval have been introduced
relating to 21 rules. One rule has been disapproved: the Occupational Safety and
Health Administration’s (OSHA’s) ergonomics standard in March 2001. A second
rule, the Federal Communication Commission’s (FCC’s) rule relating to broadcast
media ownership, was disapproved by the Senate on September 16, 2003 but was not
acted upon by the House.
After eight years, the limited use to which the rulemaking review mechanism
has been put does not appear to be attributable to a lack of familiarity with the law,
but rather to a number of other factors. Some have argued that agencies are more
carefully assessing their regulations to avoid possible congressional disapproval
resolutions. Others maintain that the current review process discourages utilization
of the act. These critics point to a number of interpretive issues concerning the scope
of the law’s coverage, the judicial enforceability of its key requirements, and whether
a disapproval resolution may be directed at part of a rule as factors which introduce
uncertainties into the use of the disapproval resolution process.
Specific problems identified by critics of the current process include (1) the lack
of a screening mechanism to identify rules that require congressional review; (2) the
absence of an expedited review procedure in the House of Representatives; (3) the
deterrent effect of the ultimate need for a supermajority of both houses to veto a rule;
(4) the reluctance to disapprove an omnibus rule where only a part of the rule raises
objections; (5) the uncertainty of which rules are covered by the act; (6) the
uncertainty whether the failure to report a covered rule to Congress can be reviewed
and sanctioned by a court; and (7) the scope of the limitation that precludes an agency
from promulgating a “substantially similar rule” after the disapproval of a rule.
Perceived agency failures to report rules covered by the CRA for review and the lack
of any basis to timely challenge the substantiality of agency cost-benefit analyses
were the subject of oversight hearings in both houses during the 106th Congress. A
product of those inquiries was the passage of the Truth in Regulating Act of 2000,
which required the Comptroller General to conduct an independent evaluation of an
agency’s cost-benefit assessment accompanying a proposed or final economically
significant rule when requested by a chair or ranking minority member of a
committee of jurisdiction. The CG’s evaluations were to be completed within 180
days of the request. Although the CG’s evaluations were not integrated to coincide
with time requirements of the CRA, they could have provided a basis for prompting
review action under this mechanism. However, no monies were ever appropriated
for the pilot program, and its authorization expired in January 2004.

26

U.S. General Accounting Office, Reports on Federal Agency Major Rules, available at
[http://www.gao.gov/decisions/majrule/majrule.htm], visited Jan. 22, 2004.

CRS-25
Two bills have been introduced in the 108th Congress to address some of the
deficiencies cited by critics of the review mechanism. H.R. 110 would require that
all rules encompassed by the definition of rule in 5 U.S.C. § 551(4) cannot “have the
force and effect of law” unless they are enacted into law by means of expedited
consideration procedures established for each house by the proposal. The bill would
apparently displace the current CRA mechanism. H.R. 3356 would amend the CRA
by establishing a Joint Administrative Procedures Committee (JAPC) composed of
24 Members, 12 from each house, which would act as an oversight and screening
body for Congress with respect to existing and proposed major rules. The bill also
would provide for expedited consideration procedures for joint resolutions of
disapproval for the House of Representatives comparable to those of the Senate;
authorize the JACP, within 30 days after the required report to Congress was
received, to report a committee resolution recommending that each standing
committee with jurisdiction to which such report was provided report a joint
resolution of disapproval; and would allow an agency to reissue or promulgate a new
rule to replace a disapproved rule if it carried out the recommendation, if any, of the
JACP in the report submitted by the joint committee to the committees of jurisdiction
recommending disapproval action. Neither of the bills has as yet received committee
action.
Selected Source Reading
Cohen, Daniel and Peter L. Strauss. “Congressional Review of Agency
Regulations.” Administrative Law Review, vol. 49 (winter 1997), pp. 95-110.
CRS Report RL30116. Congressional Review of Agency Rulemaking: An Update
and Assessment After Nullification of OSHA’s Ergonomics Standard, by (name
redacted).
Parks, Julie A. “Lessons in Politics: Initial Use of the Congressional Review Act.”
Administrative Law Review, vol. 55 (2003), pp. 187-210.
Pfohl, Peter A. “Congressional Review of Agency Rulemaking: The 104th Congress
and the Salvage Timber Directive.” Journal of Law and Politics, vol. 14
(winter 1998), pp. 1-31.
Rosenberg, Morton. “Whatever Happened to Congressional Review of Agency
Rulemaking?: A Brief Overview, Assessment, and Proposal for Reform.”
Administrative Law Review, vol. 51 (fall 1999), pp. 1051-1092.
(name redacted)

CRS-26

E. Freedom of Information Act
Statutory Intent and History
The Freedom of Information (FOI) Act was originally adopted by Congress in
1966 (80 Stat. 250) and was codified in 1967 (81 Stat. 54; 5 U.S.C. § 552), when it
also became operative law. As enacted, the FOI Act replaced the public information
section of the Administrative Procedure Act (APA) (60 Stat. 237), which was found
to be ineffective in providing the public with a means of access to unpublished
records of federal departments and agencies. Subsection (a) of the FOI Act reiterated
the requirements of the APA public information section that certain operational
information — e.g., organization descriptions, delegations of final authority, and
substantive rules of general policy — be published in the Federal Register.
Subsection (b) statutorily established a presumptive right of access by any
person — individual or corporate, regardless of nationality — to identifiable,
existing, unpublished records of federal departments and agencies without having to
demonstrate a need or even a reason for such a request. Subsection (b)(1)-(9) lists
nine categories of information that may be exempted from the rule of disclosure. The
burden of proof for withholding material sought by the public was placed upon the
government. Denials of requests could be appealed to the head of the agency holding
the sought records, and ultimately pursued in federal district court. The law specifies
the direct costs which agencies may recover when responding to requests for records.
The product of 11 years of investigation and deliberation in the House of
Representatives and half as many years of consideration in the Senate, the FOI Act
was legislated by Congress in the face of considerable opposition by the executive
departments and agencies. This opposition produced a hostile environment for the
development, passage, and early administration of the statute. As a result, portions
of the law have been subjected to a high judicial gloss for reasons of both
clarification and interpretation. To maintain faithful administration of the FOI Act
and to preserve its purpose, Congress has found it necessary to conduct vigorous
oversight of its implementation and, on four occasions, to amend its provisions.
Reporting in 1972 on the initial implementation of the statute, a House oversight
committee concluded that the “efficient operation of the Freedom of Information Act
has been hindered by 5 years of foot-dragging by the Federal bureaucracy ... of two
administrations.”27 To remedy the situation, the following amendments to the FOI
Act were approved in 1974 (88 Stat. 1561): (1) a request need only “reasonably
describe” the material being sought; (2) only the direct costs of search for and
duplication of requested records could be recovered by agencies; (3) documents
could be furnished without charge or at reduced cost if doing so would be in the
public interest; (4) a court might inspect records in camera when making a
determination concerning their exemption from disclosure; (5) response to an initial
request must be made within 10 working days, and to an administrative appeal

27

U.S. Congress, House Committee on Government Operations, Administration of the
Freedom of Information Act, H.Rept. 92-1419, 92nd Cong., 2nd sess. (Washington: GPO,
1972), p. 8.

CRS-27
request, within 20 working days; (6) responsive pleading to an FOI Act lawsuit must
be made within 20 days; (7) complainants who substantially prevail in FOI Act
lawsuits may be awarded court costs and attorney fees; and (8) any segregable portion
of a requested record shall be disclosed after exempt parts are deleted. The
amendments also expanded the definition of agency for FOI Act matters, required
agencies to report annually on FOI Act administration and operations, and clarified
two of the statute’s exemptions.
In 1976, an FOI Act amendment clarifying the language of the third exemption
to the rule of disclosure was attached to the Government in the Sunshine Act, another
open government law (90 Stat. 1241, at 1247).
Additional amendments to the FOI Act were enacted in 1986 as a rider to an
omnibus anti-drug abuse law (100 Stat. 3207-48). These modifications strengthened
protections concerning law enforcement records and revised the fee and fee waiver
provisions of the FOI Act. In this latter regard, separate fee arrangements were
prescribed when records are requested (1) for commercial use; (2) by an educational
or noncommercial scientific institution or a news media representative; and (3) by all
others besides these types of requesters. The Office of Management and Budget was
mandated to issue government-wide fee and fee waiver guidelines.28
The most recent amendment of the FOI Act occurred in 1996 during the closing
weeks of the 104th Congress. These amendments (110 Stat. 3048), addressing
shortcomings in administration as well as the new challenges posed by electronic
forms and formats, inclusively defined covered records, required materials to be
provided in the form or format requested, increased the initial response period from
10 to 20 days, encouraged agencies to maintain multitrack processing systems based
upon the complexity of requests received, established expedited processing in cases
where a “compelling need” is demonstrated, and modified agency reporting
requirements, among other changes.
Major Provisions
Subsection (a) of the FOI Act requires that certain operational information —
e.g., organization descriptions, delegations of final authority, and substantive rules
of general policy — be published in the Federal Register.
Subsection (b) prescribes a procedure whereby any person may request access
to identifiable, existing, unpublished records of the federal departments and agencies.
No need, ‘or even a reason’, for such a request must be demonstrated. The burden
of proof for withholding material sought by the public is placed upon the
government.
Although the statute specifies nine categories of information which may be
protected from disclosure, these exemptions do not require agencies to withhold
records, but merely permit access restriction. Allowance is made in the law for the

28

These guidelines are found in the Federal Register, vol. 52, Mar. 27, 1987, pp. 1001210020.

CRS-28
exemption of (1) information properly classified for national defense or foreign
policy purposes as secret under criteria established by an executive order; (2)
information relating solely to agency internal personnel rules and practices; (3) data
specifically excepted from disclosure by a statute which either requires that matters
be withheld in a non-discretionary manner, or establishes particular criteria for
withholding, or refers to particular types of matters to be withheld; (4) trade secrets
and commercial or financial information obtained from a person and privileged or
confidential; (5) inter- or intra-agency memoranda or letters which would not be
available by law except to an agency in litigation; (6) personnel, medical, and similar
files the disclosure of which would constitute an unwarranted invasion of personal
privacy; (7) certain kinds of investigatory records compiled for law enforcement
purposes; (8) certain information relating to the regulation of financial institutions;
and (9) geological and geophysical information and data, including maps, concerning
oil and gas wells. Disputes over the availability of agency records may ultimately be
settled in court.
Agencies responding to FOI Act requests are permitted by the statute to charge
fees for certain activities — document search, duplication, and review — depending
on the type of requester: a commercial user; an educational or noncommercial
scientific institution, whose purpose is scholarly or scientific research; a news media
representative; or the general public. However, requested records may be furnished
by an agency without any charge or at a reduced cost, according to the law, “if
disclosure of the information is in the public interest because it is likely to contribute
significantly to public understanding of the operations or activities of the government
and is not primarily in the commercial interest of the requester.” Both the Office of
Management and Budget and the Department of Justice coordinate FOI Act policy
and activities within the executive branch.
Discussion
The effective operation of the FOI Act owes much to diligent congressional
oversight and corrective amendment of the statute. Initial agency hostility to the
statute has subsided over the subsequent 35 years, but some agency administrative
practices adverse to the effective operation of the law continue to be problematic.
Ongoing judicial scrutiny and interpretation is closely watched by Congress for
departures from congressional intent. Apart from these continuing challenges,
information developments, such as more widespread government use of e-mail, could
prompt congressional review of whether additional FOI Act adjustments may be
needed.
Selected Source Reading
Foerstel, Herbert N. Freedom of Information and the Right to Know. Westport, CT:
Greenwood Press, 1999.
Hammitt, Harry A., David L. Sobel, and Mark S. Zaid, eds. Litigation Under the
Federal Open Government Laws 2002. Washington: Electronic Privacy
Information Center, 2002.

CRS-29
U.S. Congress. House. Committee on Government Operations [and] Senate
Committee on the Judiciary. Freedom of Information Act and Amendments of
1974 (P.L. 93-502). Source Book: Legislative History, Texts, and Other
Documents. Joint committee print. 94th Congress, 1st session. Washington:
GPO, 1975.
U.S. Congress. House. Committee on Government Reform. A Citizen’s Guide on
Using the Freedom of Information Act and the Privacy Act of 1974 to Request
Government Records, H.Rept. 108-172. 108th Congress, 1st session.
Washington: GPO, 2003.
U.S. Congress. Senate Committee on the Judiciary. Freedom of Information Act
Source Book: Legislative Materials, Cases, Articles. S.Doc. 93-82. 93rd
Congress, 2nd session. Washington: GPO, 1974.
U.S. General Accounting Office. Information Management: Progress in
Implementing the 1996 Electronic Freedom of Information Act Amendments.
GAO-01-378. March 2001.
(name redacted)

CRS-30

F. Privacy Act
Statutory Intent and History
In the Privacy Act of 1974 (5 U.S.C. § 552a) Congress mandated personal
privacy protection in several regards concerning federal agency operations and
practices. Its eclectic provisions can be traced to several contemporaneous events
prompting congressional interest in securing personal privacy.
Since the years of the late 19th century, various developments — not the least
of which the introduction of new, intrusive technologies — have contributed to more
disparate understandings of the concept of privacy and infringements upon it.
Congress made an initial effort at legislating a new kind of privacy protection in 1970
when enacting the Fair Credit Reporting Act regulating the collection and
dissemination of personal information by consumer reporting entities (84 Stat. 1128;
15 U.S.C. § 1681 et seq.).
With the Crime Control Act of 1973, Congress prohibited federal personnel and
state agencies receiving law enforcement assistance funds pursuant to the statute
from making unauthorized disclosures of personally identifiable criminal history
research or statistical information. It also permitted “an individual who believes that
criminal history information concerning him contained in an automated system is
inaccurate, incomplete, or maintained in violation of this [law] ... to review such
information and to obtain a copy of it for the purpose of challenge or correction” (87
Stat. 197, at 215-216; 42 U.S.C. § 3789g).
That same year, the Advisory Committee on Automated Personal Data Systems,
established by Secretary of Health, Education, and Welfare Elliot L. Richardson in
early 1972, offered an important consideration. The panel’s July 1973 final report
recommended “the enactment of legislation establishing a Code of Fair Information
Practice for all automated personal data systems.” Such a code would: punish unfair
information practice with civil and criminal penalties; provide injunctive relief to
prevent violations of safeguard requirements; empower individuals to bring suits for
unfair information practices to recover actual, liquidated, and punitive damages, in
individual or class actions; and allow the recovery of reasonable attorneys’ fees and
other costs of litigation incurred by individuals who bring successful suits.29
Congressional efforts to legislate notice, access, and emendation arrangements
for individuals concerning personally identifiable records maintained on these
individuals by federal departments and agencies began in the House in June 1972, but
did not extend beyond the subcommittee hearing stage during the 92nd Congress.
However, a few days before these inaugural House hearings on legislation that would
evolve into the Privacy Act, a burglary occurred at Democratic National Committee
headquarters. It was the beginning of the Watergate incident, which would

29

U. S. Department of Health, Education, and Welfare, Secretary’s Advisory Committee on
Automated Personal Data Systems, Records, Computers, and the Rights of Citizens
(Washington: GPO, 1973), pp. xxiii and 50.

CRS-31
significantly affect attitudes toward privacy protection legislation and the leadership
for such legislation.
Legislation leading to the enactment of the Privacy Act began in the House
largely to create a procedure whereby individuals could learn if federal agencies
maintained files on them, review the contents of the records in these files, correct
inaccuracies they contained, and know how this information was being used and by
whom. In the Senate, a privacy protection bill sponsored by Senator Sam Ervin Jr.,
initially sought largely to establish a Federal Privacy Board and to create standards
and management systems for handling personally identifiable information in federal
agencies, state and local governments, and other organizations. Other aspects of
privacy policy were added to these bills as they moved through their respective
houses of Congress, and then were reconciled in a somewhat unusual manner to
create an amalgamated bill acceptable to the House, the Senate, and the President.
House hearings began in mid-February 1974 under Representative William S.
Moorhead, chairman of the Subcommittee on Foreign Operations and Government
Information of the Committee on Government Operations, and a principal manager
of the legislation. The subcommittee held markup discussions in May, June, and
July. These deliberations resulted in a clean bill (H.R. 16373), which was introduced
by Representative Moorhead with 13 bipartisan co-sponsors in mid-August and
favorably reported by the subcommittee without a dissenting vote. The Committee
on Government Operations considered the legislation in mid-September, substituted
revised text for the original language, and favorably reported it. President Gerald
Ford, who had recently succeeded to the Oval Office after President Richard Nixon’s
early August resignation, endorsed the House bill in an October 9 statement.30 The
measure was considered by the House on November 20 and 21, and approved, with
amendments, on a 353-1 yea-and-nay vote.31
A somewhat different counterpart privacy proposal emerged in the Senate.
Senator Ervin introduced his bill (S. 3418) on May 1, 1974, with bipartisan
cosponsorship. Hearings on this and related legislation occurred in June. During
June, July, and August, staff of the Senate Committee on Government Operations,
its Ad Hoc Subcommittee on Privacy and Information Systems, and the
Subcommittee on Constitutional Rights of the Committee on the Judiciary — all
panels chaired by Senator Ervin — further refined the language of the bill. In a midAugust committee markup, a staff-developed version of the measure was amended
and favorably reported to the Senate.
The new text of the bill would have established the Privacy Protection
Commission, composed of five members appointed by the President from private life
and subject to Senate approval. The commission would have been responsible for
compiling and publishing an annual directory of information systems subject to the
provisions of the bill, enforcing the legislation, and developing model guidelines for

30

U.S. Office of the President, Public Papers of the Presidents of the United States: Gerald
R. Ford, 1974, Book I (Washington: GPO, 1976), pp. 243-244.
31

Congressional Record, vol. 120, Nov. 20, 1974, pp. 36643-36660; ibid., Nov. 21, 1974,
pp. 36955-36977.

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its implementation, including the conduct of research in this regard. The bill also
would have established federal agency standards and management systems for
handling information relating to individuals. These included fair information
practice principles, disclosure standards, mailing list restrictions, and civil and
criminal penalties.
On November 21, the Senate considered the Ervin legislation; amendments
developed by committee staff and the Office of Management and Budget (OMB)
were adopted, and the resulting version of the legislation was approved.32 The
following day, the Senate took up the House counterpart bill, struck its language and
substituted in lieu thereof the language of the Ervin bill, and approved the amended
version of the House bill.33
With only a few weeks remaining before the 93rd Congress would adjourn sine
die, House and Senate managers found they had very little time to reconcile the two
differing bills. There was, however, strong desire for the passage of such legislation,
not only as a so-called Watergate reform, but also as a tribute and memorial to
Senator Ervin, who was retiring from congressional service. Consequently,
Representative Moorhead and Senator Ervin, with the concurrence of their respective
committees, agreed to the rare arrangement of having their committee staffs negotiate
a mutually agreeable legislative measure. After this effort reduced 108 substantive
differences to eight, the leaders of the respective House and Senate committees
brought those to resolution.34 In lieu of a conference committee report, a staff
analysis of the compromise legislation was produced.35 The major concession was
the relegation of the enforcement commission to the status of a temporary national
study commission. Its oversight responsibilities were vested in OMB, but without
enforcement authority.
On December 11, the House adopted the Senate bill after striking its original
language and inserting in lieu thereof provisions of its own bill.36 The Senate
concurred in the House amendment by passing its own amendment on a 77-8 vote on
December 17, clearing the measure for further House action.37 The following day,
the House agreed to the Senate amendments with an amendment of its own,38 and the
Senate concurred with the House amendments the same day, clearing the measure for
the President’s signature.39 The Privacy Act was signed into law by President Ford
on December 31, 1974 (88 Stat. 1896; 5 U.S.C. § 552a). In his signing statement, the
President said the new law “signified an historic beginning by codifying fundamental

32

Congressional Record, vol. 120, Nov. 21, 1974, pp. 36882-36921.

33

Ibid., Nov. 22, 1974, pp. 37064-37069.

34

Ibid., Dec. 17, 1974, p. 40400.

35

See ibid., pp. 40405-40408.

36

Ibid., Dec. 11, 1974, pp. 39200-39204.

37

Ibid., Dec. 17, 1974, pp. 40397-40413.

38

Ibid., Dec. 18, 1974, pp. 40879-40886.

39

Ibid., pp. 40730-40731.

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principles to safeguard personal privacy in the collection and handling of recorded
personal information by federal agencies.”40
Major Provisions
The Privacy Act provides privacy protection in several ways. First, it sustains
some traditional major privacy principles. For example, an agency shall “maintain
no record describing how any individual exercises rights guaranteed by the First
Amendment unless expressly authorized by statute or by the individual about whom
the record is maintained or unless pertinent to and within the scope of an authorized
law enforcement activity” (5 U.S.C. § 552(e)(7)).
Second, similar to the Fair Credit Reporting Act, the Privacy Act provides an
individual who is a citizen of the United States, or an alien lawfully admitted for
permanent residence, with access and emendation arrangements for records
maintained on him or her by most, but not all, federal agencies. General exemptions
in this regard are provided for systems of records maintained by the Central
Intelligence Agency and federal criminal law enforcement agencies.
Third, the statute embodies a number of principles of fair information practice.
For example, it sets certain conditions concerning the disclosure of personally
identifiable information; prescribes requirements for the accounting of certain
disclosures of such information; requires agencies to “collect information to the
greatest extent practicable directly from the subject individual when the information
may result in adverse determinations about an individual’s rights, benefits, and
privileges under Federal programs”; requires agencies to specify their authority and
purposes for collecting personally identifiable information from an individual;
requires agencies to “maintain all records which are used by the agency in making
any determination about any individual with such accuracy, relevance, timeliness,
and completeness as is reasonably necessary to assure fairness to the individual in the
determination”; and provides civil and criminal enforcement arrangements.
Discussion
Since its enactment, the Privacy Act has been amended on five occasions. In
1982, the Debt Collection Act added a new exception to the disclosure prohibition
for disclosures made to consumer credit reporting agencies (96 Stat. 1749, adding 5
U.S.C. § 552a(b)(12)). That same year, the Congressional Reports Elimination Act
changed the annual report requirement of the Privacy Act and modified the provision
for publication of agency systems of records (96 Stat. 1819, at 1821-1822, modifying
5 U.S.C. § 552a(e)(4) and (p)). In 1984, the Central Intelligence Agency Information
Act resolved a long-standing controversy by specifying that the Privacy Act is not
authority “to withhold from an individual any record which is otherwise accessible
to the individual under the provisions of” the Freedom of Information Act (96 Stat.
2209, at 2211-2212, adding 5 U.S.C. § 552a(q)(2)). Amendments in 1988 (102 Stat.
2507, adding 5 U.S.C. § 552a(o),(p),(q), and (u), and amending 5 U.S.C. § 552a(a),

40

Public Papers of the Presidents of the United States: Gerald R. Ford, 1975, Book I, pp.
1-2.

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(e), and (v)) and 1990 (104 Stat. 1388-334, modifying 5 U.S.C. § 552a(p))
established new procedures and data protection boards to ensure privacy, integrity,
and verification of data disclosed for computer matching.
Perhaps the facet of the Privacy Act that has been the most successful is its
access procedure. The volume of access requests by record subjects has grown
steadily, for the most part, since the Privacy Act was first implemented. It is,
however, about a third of the access request volume of the Freedom of Information
Act. Moreover, it appears that the total denial caseload is small in proportion to
request volume.
Similarly, the volume of requests to amend personal records is also steadily
growing, though it is not nearly so great as the volume of access requests, and the
total denial caseload is small in proportion to the amendment request volume.
In a June 2003 report, the General Accounting Office urged improved leadership
and guidance by the Office of Management and Budget to improve agency
compliance with the Privacy Act. Around this same time, as public revelations about
the efforts of some agencies to engage in data mining for homeland security purposes
— searching private sector databases for personal information — became known,
some urged amendment of the Privacy Act to clarify its scope regarding such
practices.
Selected Source Reading
Hammitt, Harry A., David L. Sobel, and Mark S. Zaid, eds. Litigation Under the
Federal Open Government Laws 2002. Washington: Electronic Privacy
Information Center, 2002.
U.S. Congress. House. Committee on Government Reform. A Citizen’s Guide on
Using the Freedom of Information Act and the Privacy Act of 1974 to Request
Government Records. H.Rept. 108-172. 108th Congress, 1st session.
Washington: GPO, 2003.
U.S. Congress. Senate Committee on Government Operations [and] House
Committee on Government Operations. Legislative History of the Privacy Act
of 1974: S. 3418 (Public Law 93-579), Source Book on Privacy. Joint
committee print. 94th Congress, 2nd session. Washington: GPO, 1976.
U.S. General Accounting Office. Privacy Act: OMB Leadership Needed to Improve
Agency Compliance. GAO-03-304. June 2003.
U.S. Privacy Protection Study Commission. Personal Privacy in an Information
Society. Washington: GPO, 1977.
_____. The Privacy Act of 1974: An Assessment, Appendix 4. Washington: GPO,
1977.
(name redacted)

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G. Federal Advisory Committee Act
Statutory Intent and History
Congress formally acknowledged the merits of using advisory committees to
obtain expert views drawn from business, academic, government, and other interests
when it enacted the Federal Advisory Committee Act (FACA) in 1972 (5 U.S.C.
Appendix; 86 Stat. 700).
The legislative history pertaining to FACA reveals that Congress had two major
concerns about advisory committees before 1972. The first concern was that the
public perceived many advisory committees as duplicative and inefficient, and
otherwise lacking adequate controls or oversight. The second concern was the
widespread belief that advisory committees did not adequately represent the public
interest, and that committee meetings were too often closed to the public.
Congressional enactment of FACA established the first requirements for the
management and oversight of federal advisory committees to ensure impartial and
relevant expertise. As required by FACA, the General Services Administration
(GSA) administers and provides management guidelines for advisory committees.
GSA also submits an annual report to the President and Congress, based on the
information provided by the federal agencies concerning the meetings, costs, and
membership of advisory committees. During FY2003, GSA reported a total of 953
advisory committees, with 31,385 individuals serving as members during the year.
Related expenditures of $282.5 million were used in FY2003 to provide member
compensation, travel and per diem expenses, and other administrative costs
associated with advisory committees. On March 14, 2000, GSA announced the
elimination of its annual report on advisory committees, relying instead on its website
to make available the detailed reports covering each committee’s activities during the
fiscal year.41 GSA also issues an annual summary report for Congress pertaining to
advisory committee management and performance.
Major Provisions
FACA requires that the advice provided by advisory committees be objective
and accessible to the public. Each advisory committee meeting is presumptively
open to the public, with certain exceptions. Adequate notice of meetings must be
published in advance in the Federal Register. Subject to the requirements of the
Freedom of Information Act, all papers, records, and minutes of meetings must be
made available for public inspection.
FACA contains guidelines for membership, mandating that any legislation
establishing an advisory committee be “fairly balanced in terms of the points of view
represented and the functions to be performed,” and that the committee’s
recommendations not be inappropriately influenced by the appointing authority or by
any special interest.

41

The GSA website is available at [http://fido.gov/facadatabase], visited Dec. 11, 2003.

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Each advisory committee must file a charter containing its mandate and duties,
frequency of meetings, membership, and the agency to which, or official to whom,
the committee reports. The act requires the Library of Congress to maintain a
depository of committee reports, papers, and charters. Pursuant to FACA, each
advisory committee goes out of existence after two years unless its charter is renewed
or is otherwise prescribed by statute.
Discussion
Since the enactment of FACA in 1972, congressional oversight hearings have
revealed that, while the goals of FACA are still relevant, some of its provisions have
occasionally needed clarification. From 1983 through 1989, legislation was
introduced in the Senate to strengthen FACA’s management controls, as well as to
establish new ethical, financial, and conflict of interest disclosure requirements for
committee members.42 These proposed amendments were never enacted, in part due
to the stringent disclosure requirements required of potential committee members.
In 1997, FACA was amended to provide for increased public participation in
activities by committees created by the National Academy of Sciences and the
National Academy of Public Administration in support of executive branch decision
making processes.43
Because federal agencies needed clarification of FACA’s statutory requirements,
GSA began issuing administrative and interpretive guidelines in 1983 pertaining to
the implementation of FACA. These final rules provide guidance to agency
committee management officers (CMOs) for the establishment and management of
advisory committees. On January 14, 2000, GSA issued a proposed rule for revised
management guidelines in the Federal Register.44 The following year, on July 19,
2001, GSA issued its final rule providing additional guidance to CMOs based on
statutory provisions and internal agency procedures.45
In order to curtail the proliferation of advisory committees, President William
Clinton issued E.O. 12838 in 1993, requiring the elimination of one-third of the
advisory committees not created by statute.46 In addition, executive branch
departments and agencies were proscribed from administratively creating new
advisory committees without the approval of the Director of the Office and
Management and Budget (OMB). The following year, as part of the National
Performance Review, Vice President Albert Gore issued a memorandum indicating
each agency should reduce advisory committee costs by 5%. The memorandum also
stated that President Clinton would not support legislation establishing new advisory

42

S. 1641 was introduced on July 19, 1983, and S. 2127 was introduced on Nov. 17, 1983;
S. 2721 was introduced on Aug. 10, 1988, and S. 444 was introduced on Feb.23, 1989.
43

111 Stat. 2689.

44

65 Federal Register 2504.

45

41 C.F.R. § 102-3 (2003, pp. 11-44).

46

3 C.F.R., 1994 Comp., p. 590.

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committees or exemptions from FACA.47 On October 5, 1994, OMB issued Circular
No. A-135, entitled “Management of Federal Advisory Committees.” This circular
requires OMB and GSA to monitor agency compliance with E.O. 12838 to reduce
the number of advisory committees.
Selected Source Reading
CRS Report RL30260, Federal Advisory Committees: A Primer, by (name redacted).
U.S. Congress, House Committee on Government Reform and Oversight,
Subcommittee on Government Management, Information, and Technology,
Oversight of the Federal Advisory Committee Act, hearings, July 14, 1998, 105th
Cong., 2nd sess. Washington: GPO, 1999.
U.S. General Accounting Office, Federal Advisory Committee Act: Views of
Committee Members and Agencies on Federal Advisory Committee Issues,
GAO Report GAO/GGD-98-147. Washington: GAO, 1998.
U.S. General Accounting Office, Federal Research: The National Academy of
Sciences and the Federal Advisory Committee Act, GAO Report GAO/RCED99-17. Washington: GAO, 1988.
(name redacted)

47

U.S. Office of the Vice President, “Memorandum for the Heads of Executive Departments
and Agencies on the Management of Federal Advisory Committees,” June 28, 1994, Annual
Report of the President on Federal Advisory Committees (Washington: GPO, 1995), p. A7.

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H. Government in the Sunshine Act
Statutory Intent and History
The Government in the Sunshine Act (90 Stat. 1241; 5 U.S.C. § 552b) was
initially enacted in 1976. It requires collegially headed federal executive agencies
whose members are appointed by the President with the advice and consent of the
Senate to hold certain meetings in public. The act applies to meetings during which
deliberations determine, or result in the joint conduct or disposition of, official
agency business. The act applies to more than 45 federal collegial bodies, consisting
primarily of independent regulatory boards and commissions having from three to
seven members. The statute specifies 10 exceptions to its rule of openness that may
be invoked by the agencies. Any doubt as to whether a meeting should be open or
closed, however, is to be resolved in favor of an open meeting, according to the act’s
legislative history. Decisions to close a meeting are subject to judicial review.
Major Provisions
The major provisions of the Sunshine Act include (1) a presumption of open
meetings; (2) public notice of an agency meeting, indicating the time, location,
subject of the meeting, whether the meeting is open or closed, and the name and
telephone number of the official designated to respond to requests for information
about the meeting; (3) 10 exemptions by which an agency may close a portion or all
of a meeting and withhold information; (4) procedures an agency is to follow when
closing a meeting, which include a majority vote of the members and certification by
the general counsel that the meeting may properly be closed; and (5) judicial review
of an agency’s action to close a meeting.
A meeting may be closed if it involves: (1) national security matters that are
specifically authorized by an executive order to be protected and are properly
classified; (2) internal personnel rules and practices; (3) matters specifically
exempted from disclosure by statute; (4) trade secrets and commercial or financial
information obtained from a person and privileged or confidential; (5) formal censure
or accusation of a crime; (6) clearly unwarranted invasion of personal privacy; (7)
law enforcement investigatory records or information; (8) information contained in,
or related to, reports used by agencies responsible for the regulation or supervision
of financial institutions; (9) information whose premature disclosure would: (a) lead
to financial speculation or significantly endanger a financial institution; or (b)
significantly frustrate a proposed agency action; or (10) issuance of a subpoena or
other related judicial matter.
Discussion
The consensus of observers is that the act has been only partially successful in
opening bureaucratic decision making processes to public scrutiny. Although federal
agencies now routinely follow the Sunshine Act’s requirements, empirical research
suggests that, after the law was passed, agency practices changed in ways that may
have served to circumvent openness. The number of meetings, as well as the number
of open meetings or partly open meetings, declined steadily from 1979 to 1984 as
agencies resorted to wider use of the exemption provisions. In addition, some

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agencies used notation voting, which permitted members to vote sequentially on
paper on the basis of circulated written materials, thereby making formal meetings
unnecessary.48
The implementation of the Sunshine Act has been characterized by difficulties
in finding the proper balance between the value of unfet

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3ARL30795. Public record. Not legal advice.