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SECTION 3-PUBLIC INFORMATION

The purpose of section 3 is to assist the public in dealing with administrative agencies by requiring agencies to make their administrative materials available in precise and current form. Section 3 should be construed broadly in the light of this purpose so as to make such material most useful to the public. The public information requirements of section 3 do not supersede the Federal Register Act (44 U.S.C. 301 et seq.). They are to be integrated with the existing program for publication of material in the Federal Register and the Code of Federal Regulations. The Federal Register Regulations (11 F.R. 9833) govern the manner in which documents are to be prepared prior to submission to the Division of the Federal Register. All materials issued under section 3 (a) of the Act will be included in the Code of Federal Regulations and should be prepared accordingly. The Division of the Federal Register is prepared to offer assistance to the agencies in this respect.

AGENCIES SUBJECT TO SECTION 3

This section, unlike the other provisions of the Act, is applicable to all agencies of the United States, excluding Congress, the courts, and the governments of the Territories, possessions, and the District of Columbia. Every agency, whether or not it has rule making or adjudicating functions, must comply with this section. Section 2(a), defining agencies, states specifically that even the exemption for the functions enumerated in the last sentence of that section does not extend to section 3. Accordingly, agencies performing temporary war functions must comply with this section.

EXCEPTIONS TO REQUIREMENTS OF SECTION 3

Two exceptions have been made to section 3, namely:

"(1) Any function of the United States requiring secrecy in the public interest." This would include the confidential operations of any agency, such as the confidential operations of the Federal Bureau of Investigation and the Secret Service and, in general, those aspects of any agency's law enforcement procedures the disclosure of which would reduce the utility of such

procedures. It is not restricted, however, to investigatory functions. The Comptroller of the Currency, for example, may have occasion to issue rules to national banks under such circumstances that the public interest precludes publicity.

It should be noted that the exception is made only "to the extent" that the function requires secrecy in the public interest. Such a determination must be made by the agency concerned. To the extent that the function does not require such secrecy, the publication requirements apply. Thus, the War Department obviously is not required to publish confidential matters of military organization and operation, but it would be required to publish the organization and procedure applicable to the ordinary civil functions of the Corps of Engineers.

"(2) Any matter relating solely to the internal management of an agency." This exception is in line with the spirit of the public information requirements of section 3. If a matter is solely the concern of the agency proper, and therefore does not affect the members of the public to any extent, there is no requirement for publication under section 3. Thus, an agency's internal personnel and budget procedures need not be published (e.g., rules as to leaves of absence, vacation, travel, etc.). However, in case of doubt as to whether a matter is or is not one of internal management, it is suggested that the matter be published in the Federal Register, assuming it does not require secrecy in the public interest.

"Internal management of an agency" should not be construed as intra-agency only; it includes functions of internal Federal management, such as most of the functions of the Bureau of the Budget, and interdepartmental committees which are established by the President for the handling of internal management problems.

It should be understood that the following discussion of the requirements of section 3 is not applicable to the above italicized functions since they are expressly exempted from the section.

EFFECTIVE DATE-PROSPECTIVE OPERATION

Section 3, which took effect on September 11, 1946, is prospective in operation. 92nd Cong. Rec. 5650 (Sen. Doc. p. 357). It has no application to materials issued prior to that date. To the extent that an agency's procedures and organization had been published theretofore in the Federal Register (for example,

formal rules of practice), it was not necessary to republish them. Appropriate citations were frequently made to such previously published materials. Under section 3(a) (3), publication in the Federal Register is required of substantive rules (and statements of general policy and interpretations formulated and adopted by the agency for the guidance of the public) issued on and after September 11, 1946.

The Federal Register of September 11, 1946, Part II, appearing in four sections and containing 966 pages, contains the material prepared by Government agencies in initial compliance with section 3.

SECTION 3(a) —RULES

Section 3 (a) directs each agency to "separately state and currently publish in the Federal Register" its organization, procedures and substantive rules.

SEPARATE STATEMENT

The three classes of material—organizational, procedural, and substantive rules-must be published in the Federal Register under separate and appropriate headings. Such separate statement, however, should not be carried to so logical an extreme as to inconvenience the public. For example, if an agency grants public benefits, it would be proper to include in the substantive rules relative to those benefits a statement as to the form to be used in applying for such benefits and the place of filing; however, the same procedural information must also be set forth or referred to in the separate statement of the agency's procedure. This may be accomplished by inserting in the procedural statement a notation to the effect that the procedure for obtaining public benefits may be found at a designated part of the substantive rules relative to such benefits.

DESCRIPTION OF ORGANIZATION

Section 3 (a) (1) requires that every agency shall separately state and currently publish in the Federal Register "(1) descriptions of its central and field organization including delegations by the agency of final authority and the established places at which, and methods whereby, the public may secure information or make submittals or requests." It is only delegations of final authority

which need be listed. In this connection, it should be noted that there is no requirement to list in the rules the names of specific individuals to whom power is delegated, unless such specific designation is otherwise required by law, nor is there any requirement that isolated instances of delegation made on an ad hoc basis be published. Senate Hearings (1941) p. 1329. However, the agency should list by title the offices or officers to whom definite delegations of final authority have been made (e.g., Claims Division of the Department of Justice, or Regional Director of the War Assets Administration). Under this subsection, it may be advisable also for agencies to state specifically the powers which may be exercised by persons serving in an "acting" capacity.

An agency's central organization should be described by listing its divisions and principal subdivisions and the functions of each. Field organizations should be described by listing the location of such offices, together with a statement of their functions. For example, if certain field offices have authority to issue interpretative or advisory opinions, this should be specified together with a statement as to whether such opinions are subject to review or confirmation by the agency's central or other office. In general, there should be a statement of the information which may be obtained from, and the applications or requests which may be filed with, the different field offices. In view of the last sentence of section 3 (a), it is important that each agency state clearly the types of applications, etc., if any, which it requires to be filed with designated agency offices.

STATEMENT OF PROCEDURES

Section 3 (a) (2) provides that every agency shall separately state and currently publish in the Federal Register "(2) statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal or informal procedures available as well as forms and instructions as to the scope and contents of all papers, reports, or examinations." This subsection is primarily concerned with the procedures by which an agency discharges its public functions -such as rule making, adjudication, and the administration of loan, grant and benefit programs. No categorical statement can be made as to the manner in which each agency should describe

"the general course and method by which its functions are channeled and determined."

Section 3 does not require an agency to "freeze" its procedures, nor does it force the adoption of procedures more formal than those previously prevailing. An agency need not invent procedures where it has no reason to establish any procedures. Senate Hearings (1941) p. 1337. However, the agency must, in accordance with section 3, keep the public currently informed of changes in the actual procedures available. Of course, the published procedures of the agency may provide (subject to applicable law) for emergency or exceptional cases.

Where there is an established procedure for the handling of certain functions, the routing of and responsibility for such functions may be stated with reasonable particularity. Some functions, however, may be exercised so seldom that it will not be practicable to prescribe a definite routine. In such cases, the published information should at least include a statement of the office to which inquiries may be directed.

In brief, section 3 (a) (2) requires an agency to disclose in general terms, designed to be realistically informative to the public, the manner in which its functions are channeled and determined. In this connection, it should be remembered that matters of internal management are exempted from the publication requirements of section 3.

Informal conference procedures used by an agency should be publicized with a view to both serving the convenience of the public and facilitating the agency's operations. Such procedures exist widely and are known to the specialized practitioners. The general public should be informed of their availability and as to how and where to take advantage of them.

Forms for application, registration, etc., and the instructions accompanying such forms need not be published in full; publication of a simple statement of the function and contents of the form, and of where copies of the form, if available, may be obtained, is sufficient. H.R. Rep. p. 22 (Sen. Doc. p. 256).

Attention is called to the last sentence of the section, stating "No person shall in any manner be required to resort to organizaion or procedure not so published." Should an agency fail to publish, for example, a listing of its field offices with their functions, persons who have not received actual notice of such agency