Amendatory instruction: Revise and Republish
Mandatory use of Revise and Republish
The OFR offers a variety of amendatory instructions to help agencies avoid revising complete sections, subparts, and parts each time a change is needed. The OFR always reserves the right to fix or change agency instructions for context or for consistency, which the agency can then discuss as appropriate.
Further, each individual change identified in amendatory instructions exponentially increases the time and resources necessary to process documents, while also increasing the opportunity for errors with each change.
In order to decrease both (time and resources and opportunity for errors) and to better serve all agency customers, OFR editors can require use of either “revise” or “revise and republish”, as a single instruction, instead of the multipart instruction preferred by an agency under the following circumstances (an agency may always reject “revise” in favor of “revise and republish” (and vice versa)):
- Times leading to an increased volume of rulemaking documents (e.g. election years, end of the fiscal year, end of the calendar year, excessive document backlog, etc)
- Emergency requests for publication or immediate filing for public inspection for lengthy documents or documents with more than about 10 instructions (which includes both main and sub instructions)
- Documents that amend more than about 75% of a given unit (e.g. section, subpart, part)
- Individual amendments that contain numerous sub (i.e. piecemeal) instructions for a section or paragraph
- Documents with extensive nomenclature changes or extensive redesignations (either in an instruction or table)
For final rules (including temporary final rules), agencies must accept one of these two instructions. If an agency needs to highlight specific changes in greater detail than included in SUPPLEMENTARY INFORMATION, the agency may include a document in its online docket (e.g. FDMS) with the redline changes* showing the differences between the original and amended regulatory text and then mention that document in the rule preamble.
For proposed rules (including interim final rules and direct final rules), agencies may reject both amendments in favor of the multipart amendment(s) only if they can demonstrate that including a redline version in the docket is insufficient to address legal concerns under the agency’s specific statutory authority and requirements. Simply referencing the Administrative Procedure Act requirements for notice and comment (under 5 U.S.C. §553) is insufficient. For advance permission to use multipart instructions, request a deviation. For permission in a live document, follow your Scheduler’s instructions.
*Redline changes cannot publish in the Federal Register because of printing limitations.
Understanding the instruction
Using "revise and republish" allows you to give context for CFR changes (by combining both the revised content and unchanged, republished content that appears adjacent to the changed text) while you discuss the specific changes in the preamble without having to worry about using the correct amendatory language. This means that you no longer have to identify and precisely describe each, individual amendment. Instead, you can set out the full text in a single instruction. For rulemaking documents with a number of amendments, this instruction can significantly:
- decrease your drafting time
- decrease the likelihood of agency-caused errors through poor or incorrect amendatory instructions
- decrease the time for our editorial review (the time it takes before we can schedule your document for publication)
- decrease the processing time (the time it takes us to convert your document to the FR 3-column format; even shorter documents with an excessive number of instructions can take longer than 3 days to publish after the review is complete)
- decrease the likelihood of OFR-caused errors; each instruction can result in an OFR-caused error x3 —
- when we edit your document
- when we process your document
- when we follow your instruction and amend the CFR
- increase the overall efficiency of publishing your rulemaking documents and amending the CFR
We do not have a bright-line rule for when an agency should use this instruction; for now, that will be determined by the circumstances of the specific document. If an agency has only 2 or 3 instructions for a section, it may not need the new combined instruction. Conversely, a document with 72 individual instructions for a single section is clearly excessive, no matter the circumstances.
In general, you may use this instruction at the paragraph level and the section level. For example, if a document has 10 instructions for the section but 8 are for a specific paragraph, then you could use it just for that paragraph and reduce the instructions for the section from 10 to 3. In limited circumstances, you may also use this instruction for a part or subpart.
When you use this instruction at the section, subpart, or part level, we will retain the source note history for each affected section — unlike with the "revise" instruction where we remove the source note history and start fresh.
Errors
Existing errors
If you can show that content flagged as problematic or a codification error is included under the "republished" portion of the instruction, you may be able to keep the error. Contact the Scheduling Unit or the Legal Division before drafting if you have identified an error that you believe you need to retain.
New errors
OFR editors will not catch unintentional substantive errors introduced in text intended to be “republished”. If your agency inadvertently changes text intended to be included under the “republished” portion of the instruction, we may be able to correct the error in certain circumstances.