"You must remember that since 1916 the way we conduct our business obviously was not a matter in which the public was ever given the knowledge to comment on . . . We are being pried open."

—Office of the Chief Counsel

Federal Highway Administration¹

The Federal Highway Administration (FHwA), despite the best efforts of a number of its officials, is still operating on the principle that the best way to deal with opposition is to pretend that it does not exist. In an important rulemaking action in May 1974,² FHwA overrode the advice of the General Counsel of the Department of Transportation and issued the new regulation as a final rule without providing interested persons an opportunity to comment on the regulation in proposal form.

In a number of previous articles and comments, ELR has reported on the refusal of FHwA to publish its regulations and to recognize an obligation to allow interested persons to participate in FHwA decisions affecting them.³ In a major ELR article in 1972, Peterson and the late Robert Kennan found FHwA procedures "virtually inaccessible," and reported that only eight pages of FHwA procedures had been published as formal egulations.⁴ Subsequently, in June 1973, the National Wildlife Federation brought suit against Secretary of Transportation Claude S. Brinegar, seeking to compel FHwA to publish those of its procedures which fit the definition of "rule" set forth in the Administrative Procedure Act (APA).⁵ Now, more than one year later, this action is still pending, and the FHwA continues to resist the idea of publication, even in the face of unequivocal and mandatory language in the APA directing agencies to publish their rules and regulations in the Federal Register.⁶