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1.11 DEPARTMENTAL REGULATIONS, AS REVISED 5 U.S.C. §301 (1966)

DEPARTMENTAL REGULATIONS

5 § 301. Departmental regulations

The head of an Executive department or military department may prescribe regulations for the government of his deparment, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. This section does not authorize withholding information from the public or limiting the availability of records to the public. Pub.L. 89-554, Sept. 6, 1966, 80 Stat. 379.

1.11a CODIFICATION OF 5 U.S.C. §301
September 6, 1966, P.L. 89-554, 80 Stat. 379

§ 301. Departmental regulations

The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. This section does not authorize withholding information from the public or limiting the availability of records to the public.

[p. 379]

1.11a(1) SENATE COMMITTEE ON THE JUDICIARY S. REP. No. 1380, 89th Cong., 2d Sess. (1966)

TITLE 5, UNITED STATES CODE, "GOVERNMENT
ORGANIZATION AND EMPLOYEES"

JULY 21, 1966.-Ordered to be printed

Mr. ERVIN, from the Committee on the Judiciary, submitted the

following

REPORT

[To accompany H.R. 10104]

The Committee on the Judiciary, to which was referred the bill (H.R. 10104), to enact title 5, United States Code, "Government Organization and Employees," codifying the general and permanent laws relating to the organization of the Government of the United States and to its civilian officers and employees, having considered the same, reports favorably thereon, with amendments, and recommends that the bill, H.R. 10104, as amended, do pass.

[p. 1]

STATEMENT

H.R. 10104 was referred to the Subcommittee on Revision and Codification of the Committee on the Judiciary of the U.S. Senate. On September 30, 1965, a notice of the pendency of H.R. 10104 was inserted in the Congressional Record. Briefly, the purpose of this notice was to advise any and all interested parties of the consideration of this legislation by the subcommittee and to request that those interested inform the subcommittee of their interest therein, together with such suggestions or modifications that would from their point of view be reasonable and desirable. In addition thereto, agencies, departments, and committees of the Senate, were advised by writing of the pendency of this legislation and were requested to submit their comments thereon. As the result of such notice and letters many communications were received by the committee. Some of the received reports expressed approval of the legislation while others recommended amendments and modifications to the bill. All of these communications were studied and as a result of the suggestions, numbers of the pro

posed amendments or modifications were accepted while others were rejected. In many instances where there were rejections, such acts were based upon the fact that the committee deemed that they were unnecessary or constituted a substantive change in existing law which is not within the concept of a codification.

Purpose. The purpose of this bill is to restate in comprehensive form, without substantive change, the statutes in effect before July 1, 1965, that relate to Government employees, the organization and powers of Federal agencies generally, and administrative procedure, and to enact title 5 of the United States Code. Queries have been raised as to the effect of this bill on laws passed subsequent to July 1, 1965. This bill will in no way affect them. Only those laws existing prior to July 1, 1965, are the subject matter of this bill. The amendatory effect of laws effective on or after July 1, 1965, which will be covered by a supplemental codification bill, is preserved by section 7(a) of the bill. The bill, like any codification, does not constitute a current legislative endorsement of the substantive provisions of statutes in effect before July 1, 1965, some of which are being currently studied by Congress for possible substantive amendment. As stated in the House report (No. 901) on H.R. 10104, in the revised title 5, simple language has been substituted for awkward and obsolete terms, and superseded, executed, and obsolete statutes have been eliminated. This bill is a part of the program of the Committee on the Judiciary of the House of Representatives to enact into law all 50 titles of the United States Code.

History. The statutes that relate to Government personnel begin with the first statute enacted by Congress (1 Stat. 23). With the growth of the United States and the accompanying growth in the size of the Government's work force and the complexity of their duties, the personnel statutes grew in number and in complexity. Attempts were made periodically to consolidate personnel statutes, but these attempts had only partial success and grew obsolete through the enactment of subsequent statutes. The Commission on Organization of the Executive Branch of the Government (Hoover Commission), in its report on personnel and civil service, February 1955, recommended that the Civil Service Commission prepare and that Congress enact a statute to codify the personnel statutes of the United States (Recommendation 17, pp. 82-83). The need for codification of the statutes relating to personnel has also been recognized by the Committees on Post Office and Civil Service of both Houses, the Bureau of the Budget, and the Civil Service Commission.

In June of 1956, the Civil Service Commission directed its General Counsel, L. V. Meloy, to undertake the recodification of title 5. The recodification effort resulted in two earlier bills, H.R. 8748, 86th Congress, 1st session, which was introduced on August 20, 1959, and H.R. 4158, 88th Congress, 1st session, which was introduced on February 25, 1963. Both bills were circulated among the departments and agencies of the Government and, after receipt, consideration, and adoption of the constructive comments submitted, and incorporation of subsequent legislation, the bill was revised into the form in which it was received by the Senate upon its passage by the House of Representatives.

[p. 19]

Standard changes.-Certain standard changes are made uniformly throughout title 5 as revised. Some of these are explained in chapter 1, "Organization", and chapter 21, "Definitions". The most significant of the other standard changes are explained in the following paragraphs.

As far as possible, the statute is stated in the present tense and in the active voice. Where there is a choice of two or more words, otherwise of equal legal effect, the more commonly understood word is used.

The word "shall" is used in the mandatory and imperative sense. The word "may" is used in the permissive sense, as "is permitted to" and "is authorized to". The words "may not" are used in a prohibitory sense, as "is not authorized to" and "is not permitted to". The words "no individual may" mean that no individual is required, authorized, or permitted to do the act.

The word "includes" means includes but is not limited to. The word "considered" denotes the exercise of judgment. The word "deemed" is used where a legal fiction, or what may in some cases be a legal fiction, is intended. The word "is" is used for statements of fact.

CHAPTER 3-POWERS

Sec.

301. Departmental regulations.

302. Delegation of authority.

303. Oaths to witnesses.

304. Subpenas.

305. Systematic agency review of operations.

[p. 20]

SECTION 301

Derivation:

United States Code Revised Statutes and Statutes at Large
5 U.S.C. 22
R.S. § 161.

Aug. 12, 1958, Pub. L. 85-619, 72 Stat.
547.

The words "Executive department" are substituted for "department" as the definition of "department" applicable to this section is coextensive with the definition of "Executive department” in section 101. The words "not inconsistent with law" are omitted as surplusage as a regulation which is inconsistent with law is invalid.

The words "or military department" are inserted to preserve the application of the source law. Before enactment of the National Security Act Amendments of 1949 (63 Stat. 578), the Department of the Army, the Department of the Navy, and the Department of the Air Force were Executive departments. The National Security Act Amendments of 1949 established the Department of Defense as an Executive Department including the Department of the Army, the Department of the Navy, and the Department of the Air Force as military departments, not as Executive departments. However, the source law for this section, which was in effect in 1949, remained applicable to the Secretaries of the military departments by virtue of section 12(g) of the National Security Act Amendments of 1949 (63 Stat. 591), which provided:

"All laws, orders, regulations, and other actions relating to the National Military Establishment, the Departments of the Army, the Navy, or the Air Force, or to any officer or activity of such establishment or such departments, shall, except to the extent inconsistent with the provisions of this Act, have the same effect as if this Act had not been enacted; but, after the effective date of this Act, any such law, order, regulation, or other action which vested functions in or otherwise related to any officer, department, or establishment, shall be deemed to have vested such function in or relate to the officer or department, executive or military, succeeding the officer, department, or establishment in which such function was vested. For purposes of this subsection the Department of Defense shall be deemed the department succeeding the National Military Establishment, and the military departments of Army, Navy, and Air Force shall be deemed the depart[p. 23]

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