Intelligence Law School - Course 1: Lesson 5.2.1 The Administrative Procedure Act of 1946 (5 U.S.C. §§ 551-559) [HTML-Only]


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LESSON 5: ADMINISTRATIVE LAW


5.2 Agency Rules


5.2.1 The Administrative Procedure Act of 1946 (5 U.S.C. §§ 551-559)


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5.2.1 The Administrative Procedure Act of 1946 (5 U.S.C. §§ 551-559)

5.2.1.1 Types of Agency Rules Generally

Okay, so let’s get started with agency-level administrative law generally—as it’s applied by the vast majority of federal agencies outside the U.S. Intelligence Community.

 

I’m going to start out by explaining all of the general categories of blackletter administrative rules under the Administrative Procedure Act of 1946, because the rest of this administrative law lesson might get a bit complicated for those of you who’ve never studied administrative law before.

I want you to know where we’re going right from the start.

I’m going to run through every general category of rule under the APA very quickly, and I’ll fill in the details throughout this long lesson.

 

In a nutshell, the Administrative Procedure Act, or APA, breaks down all administrative law into two broad categories:

Ø  Rules;[1] and

Ø  Orders.[2]

 

This course and later courses on IntelligenceLaw.com focus primarily on rules, which are like statutes, more than orders, which are like judicial opinions.

I’ll explain why in a minute.

 

There are two broad categories of rules:

Ø  Legislative Rules; and

Ø  Non-Legislative Rules.

 

Legislative rules have the full force and effect of law.[3]

Non-legislative rules do not.

 

Ø  Legislative Rules are also called substantive[4] rules or regulations.

o   Since they have the force of law—and only Congress has the constitutional authority to make new laws—legislative rules must be promulgated pursuant to a delegation of lawmaking power from Congress.[5]

o   Legislative rules also must be promulgated in accordance with the default statutory procedures for informal[6] rulemaking spelled out in section 553[7] of the APA unless Congress explicitly grants an exemption or mandates different procedures in the relevant enabling statute.

 

Ø  Non-legislative rules, on the other hand, don’t have the force and effect of law.

o   They are divided into 3 different categories under the APA.[8] They can be either:

§  Interpretive Rules;[9]

§  General Statements of Policy;[10] or

§  Rules of Agency Organization, Procedure, or Practice.

 

Administrative law, as a field, is focused primarily on the rules promulgated by agencies, but agencies aren’t the only governmental actors who issue administrative rules.

All three branches of government use some form administrative rules to properly administer their constitutional responsibilities. 

Branch-level rules issued by the Legislative Branch, the Judicial Branch, or the President himself are not technically “rules” governed by the APA.

It’s still useful to use the APA’s rule framework for understanding branch rules because that’s the framework that applies to all agency-level rules, which are really the central focus of administrative law.

 

And that’s administrative law in a nutshell.

Now, I’m going to spend the next 2 hours explaining every part of this skeletal outline in detail.

 

I’m sorry about the length, but I told you this is complex stuff.

I’ll try to make it as painless as humanly possible.

 

Again, for now, remember the APA’s framework.

There are two broad categories of rules:

Ø  Legislative Rules; and

Ø  Non-Legislative Rules.

 

Legislative rules have the full force and effect of law.[11]

Non-legislative rules do not.

 

Ø  Legislative Rules are also called substantive[12] rules or regulations.

o   Since they have the force of law, they must be promulgated pursuant to a delegation of lawmaking power from Congress.[13]

o   They also must be promulgated in accordance with the default statutory procedures for informal[14] rulemaking spelled out in section 553[15] of the Administrative Procedure Act unless Congress explicitly grants an exemption or mandates different procedures in the relevant enabling statute.

 

Ø  Non-Legislative Rules are divided into 3 different categories under the APA.[16] They can be either:

o   Interpretive Rules;[17]

o   General Statements of Policy;[18] or

o   Rules of Agency Organization, Procedure, or Practice.

 

It is important to understand all of these basic categories of rules because the nomenclature used throughout the government to name the actual rules they issue is incredibly inconsistent and incoherent.

It’s very easy to get lost.

Keep the APA’s simple framework in mind, and you’ll be able to take the weirdest manual or memorandum, instruction or guideline, decision directive or royal decree that an intelligence agency might throw at you and understand instantly its legal force and effect and precisely where it fits into the overall legal framework of American law. 

 

5.2.1.2 The Two Fundamental Types of Agency Action: Rulemaking and Adjudication

Okay, as I said, I’m going to have to start by telling you a little about statutory administrative procedure.

 

The Administrative Procedure Act (APA) is the general management statute that governs the procedures for agency action.

The administrative procedure provisions of the APA are codified as Chapter 5 of Title 5 of the U.S. Code.

 

Now, I know it’s going to sound impossible, but all agency action can be broken down into just 2 categories.[19]

 

Ø  Rulemaking;[20] and

Ø  Adjudication.[21]

 

These two categories are each broken down into 2 subcategories:

Ø  Formal; and

Ø  Informal.[22]

 

There is

Ø  Formal Rulemaking;[23] and

Ø  Informal Rulemaking.[24]

 

There is

Ø  Formal Adjudication;[25] and

Ø  Informal Adjudication.[26]

 

I go through all the specific details about both formal and informal rulemaking a little later, but for now, all you need to know is this is how things are broken down.  

Since all agency action you come across is going to be one of two things—rulemaking or adjudication—you can see why it’s pretty important to know what rulemaking and adjudication are.

 

5.2.1.3 “Rulemaking” and “Rule” Defined

Ø  Rulemaking: “Rulemaking” is defined as the agency process for formulating, amending, or repealing a rule.”[27]

o   I know.

o   It doesn’t sound like a very useful definition.

 

Ø  Rule: So what is a “rule?”

o   Well, under the APA, a “rule” means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency…”[28]

 

Ø  Intelligence Agency Rules: Intelligence agencies issue a ton of statements of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy.

o   All agencies do.

o   They also produce statements describing the organization, procedure, or practice requirements of their agency.

o   These issuances don’t have to be taking about law in order to be considered a “rule” under the APA’s definitions.

o   If they put out a statement interpreting or implementing pure policy, then that’s also considered a “rule.”

 

5.2.1.4 “Rules” v. “Orders”: How to Work within the APA’s Dichotomy

Remember that the drafters of the APA tried to fit everything agencies do into just two categories[29]rulemaking and adjudication—so some things you wouldn’t think of as a rule actually are rules for purposes of APA analysis.  

Ø  Rules of Particular Applicability: For example, a memo from the NSA General Counsel’s office giving guidance on how to handle minimization of a U.S. Person’s name from a particular report would be a rule, because it’s a statement of particular applicability and future effect that’s designed to interpret or implement the NSA’s laws or policies.[30]

o   The fact that it’s called a “memorandum” doesn’t mean it’s not a rule under the APA.

 

Ø  General Applicability and Future Effect: Rules of general applicability and future effect are unique from rules of specific applicability because they almost always have to be published in the Federal Register.[31]

o   Often agency rules dealing only with specific matters or individuals don’t have to be published in the Federal Register, although these rules may still have to be made available to the public in other ways under the APA Section 552, the Freedom of Information Act.[32]

 

Still, just because a memo from the General Counsel isn’t of general applicability doesn’t mean it’s not a “rule.”

It is still a “rule” it just doesn’t have to be published in the Federal Register.

Remember that rules can be of either general or specific applicability.

Everything is either a rulemaking or an adjudication.

A memo is clearly a “rule.” 

 

So, remember, as a result of this two-part structure, all administrative laws relevant to intelligence agencies are going to be one of two things.

Either they’ll be:

 

Ø  A “Rule”;[33] or an

Ø  “Order.”[34]

 

If you’re ever confronted by a scary looking administrative law document with a strange name and you don’t know what it is—

 

Ø  [PAUSE OMINOUSLY] Don’t touch it,

Ø  Just back away, take a breath, and remember that it can only be one of two things:

o   A “Rule”;[35] or an

o   “Order.”[36]

Ø  And only one of them is going to be relevant to the law we’re covering in this course—rules.

Ø  You don’t even need to worry about orders right now.

 

5.2.1.5 “Adjudication” and “Order” Defined

Orders come from agency adjudications, and we’re focused primarily on blackletter rules in this course.

Ø  Adjudication: So you’ll understand the difference: “adjudication” is defined as the agency process for the formulation of an order.[37]

Ø  Order Defined: So what’s an “order”?

o   The APA defines an “order” as the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rulemaking.[38]

§  In other words, anything but a “rule.”

§  Once you know what rulemaking is, anything that falls outside that category will be “adjudication”—and the product of “adjudication” is an “order.”

 

Ø  Ways to Understand the Division between Rulemaking vs. Adjudication:

o   Quasi-Legislative vs. Quasi-Judicial Action: One way to think about the difference between rulemaking and adjudication is to think about the difference between Congress and the Courts.

§  Rulemaking is a quasi-legislative act whereas adjudication is a quasi-judicial act.

§  In rulemaking, agencies act like a legislature prescribing blackletter rules to govern future conduct by a general population.

§  In adjudication, agencies act like courts by sitting in judgment as decision maker.

·         They formulate binding decisions by applying existing blackletter rules to evaluate how the law applies to factual circumstances.

·         And they ultimately reach a conclusion that has binding legal force primarily on the specific parties directly involved in the adjudication.[39]

o   Generally Applicable vs. Individually Application: A “rule” on the other hand, is like a statute, in that it is applicable to a general population, not specific to one person like adjudication.

§  A rule lays down the law governing future actions and is generally broad in its application—although it is still a rule if its applicable only to a small group of employees with specialized functions within an intelligence agency.

o   Future vs. Past Effect: Also important is the fact that rules, like statutes, usually apply prospectively, not retrospectively.

§  Rules usually govern future not past events—and impose or interpret a code of conduct that will be binding on actions carried out in the future.

§  Passing laws that are binding on conduct already committed in the past can actually raise some pretty serious legal problems.

§  Ex post facto legislation, for example, is explicitly forbidden by the U.S. Constitution at both the federal and state levels.[40]

§  This constitutional ban applies only to criminal statutes not civil administrative rules,[41] but ex post facto rulemaking is still disfavored even though it’s not constitutionally prohibited.

o   Rule vs. Order Summary: To put the distinction most simply—a rule creates law to govern future conduct, whereas an order applies existing law to past conduct.

 

Ø  Informal Adjudication as a Catchall Category: This definition of order has made adjudication—particularly informal adjudication[42]—the catch-all category in administrative law.

o   Anything that doesn’t fit into rulemaking is going to be “adjudication.”[43]

 

Ø  Security Clearance Adjudication Example: In the intelligence context, a good example of an “order” would be the legal ruling given by a hearing officer adjudicating an appeal by an agency employee who has had their security clearance revoked.

o   The process of deciding whether to reinstate the clearance or to uphold the termination is “adjudication” and the result is the formulation of an “order.”

o   The formulation of that order is based on the adjudicator’s application of the applicable rules—specifically the adjudicative guidelines for security clearances, which themselves are legislative rules.[44]

 

5.2.1.6 Summary of the Distinction between “Rulemaking” and “Adjudication”

So under the APA, every agency action in administrative law is going to be either:

 

Ø  Rulemaking;[45] or

Ø  Adjudication.[46]

 

This master stroke of legislative drafting makes it surprisingly easy to navigate the otherwise incomprehensive jumble of rules used across different intelligence agencies to describe the various internal instruments they use to govern themselves.

Inconsistent nomenclature might be the biggest factor contributing to administrative law’s reputation as being incredibly complicated and impossible to understand.

 

And as bad as agencies are, Presidential rulemaking is possibly even worse.

To give you an example the President, through the National Security Council alone, has used over a dozen different names for essentially the same 2 sets of policy directives.

I’ll explain why when I get to Presidential Rules in the next section.

I’ll tell you about the difference between:

Ø  A National Security Directive, and

Ø  A National Security Presidential Directive.

Ø  And between:

o   A Presidential Review Directive.

o   A Presidential Decision Directive, and

Ø  Not to mention the newest additions to the list:

o   Presidential Study Directives; and

o   Presidential Policy Directives.

 

Yes—every one of those names I just mentioned was just a tiny bit different than the others.

And I didn’t even name all of them.

Not by a longshot.

 

I know this sounds like nobody could ever make heads or tails of all the different sets of rules cluttering up the White House alone, let alone our countless separate intelligence agencies.

Trust me; to insiders it all makes sense.

It’ll make sense to you too, because I’ll be explaining it all in a minute.

Ø  [JOKE]: But believe me; there is a logical reason behind why the NSC has created this regulatory swamp …

Ø  And no … it isn’t to confuse al Qaeda.

Ø  That may be a nice side effect, but that’s not it. 

You just need to learn a little inside baseball, and it’ll all make sense.

 

The problem for most people interested in studying intelligence law is that they have no way to know that inside baseball when they first get started.

They just see 500 names of different Presidential Security Directives produced by the NSC alone, and they say “forget it”!

Ø  They become personal injury attorneys or some other kind of lawyer instead.

o   They think it looks impossible to master intelligence law so why not at least make some money?

 

Believe me, these people are 100% wrong.

Ø  The Magic Weapon: There’s a rhyme and reason to administrative law, and the magic weapon to make sense of even the wackiest regulatory framework is the APA.

o   The APA provides a simple and uniform framework that transcends the eccentricities of individual bureaucracies and provides a simple way to make sense of it all.

 

The APA is the only reason anybody can understand what most agencies do.[47]

 

Remember those key rule-related definitions:

Ø  Rulemaking: “Rulemaking” is defined as the agency process for formulating, amending, or repealing a rule.”[48]

 

o   Rule: A “rule” means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency…”[49]

 

o   Guidelines as “Rules:” Just about any set of prospective guidelines or instructions you’re going to find in U.S. intelligence law are going to be “rules” under the APA.

 

o   Military “Orders” as “Rules”: And the name used by the agency issuing them doesn’t matter.

§  For example, when a military commander issues “orders” to a soldier, those “orders” are actually “rules” under the APA.[50]

o   Attorney General “Orders” as “Rules”: It’s not just the military either.

§  Even the Attorney General makes questionable use of the term “order” for his series of DOJ policy documents that might be more appropriately labeled “rules” under the APA’s definitions.

§  28 C.F.R. § 0.180 says that “[a]ll documents relating to the organization of the Department [of Justice] or to the assignment, transfer, or delegation of authority, functions, or duties by the Attorney General or to general departmental policy shall be designated as orders and shall be issued only by the Attorney General in a separate, numbered series.”[51]

§  It goes on to say that “[a]ll documents amending, modifying, or revoking such orders, in whole or in part, shall likewise be designated as orders […] and no other designation of such documents shall be used.”[52]

§  Since the so-called “orders” described under 28 C.F.R. § 0.180 are “agency statement[s] of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements” of the DOJ, it is possible they would be more properly classified as “rules” rather than “orders” under the APA’s definitions.[53]

§  The application of the APA’s definitions by agency heads is intended to be flexible, but still—if even the Department of Justice doesn’t always follow statutory administrative procedure to the letter, you can imagine how random things get in agencies with far less skilled attorneys on the payroll.

o   So, do you see why these definitions are important?

§  There is SO much inconsistent nomenclature that it’s difficult to pull a uniform legal framework out of the mess of bureaucratic glop without a unifying set of definitions as a starting point.

§  That’s what the Administrative Procedure Act did when it was passed in 1946, but unfortunately a whole world of inconsistent jargon already existed in bureaucracies from the military all the way down to your local FBI field office.

§  When going through U.S. Intelligence law, you need to be able to rapidly understand the legal significance of every document you come across---and the APA is the framework for doing that.

 

 

 

Footnotes

[1] 5 U.S.C. § 551(4) (2010) (Title 5—Chapter 5: Administrative Procedure) ("'Rule' means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing.").

[2] 5 U.S.C. § 551(6) (2010) (Title 5—Chapter 5: Administrative Procedure) ("'Order' means the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing."). "Rule making" is defined in 5 U.S.C. § 551(5) (2010) (Title 5—Chapter 5: Administrative Procedure) ("'Rule Making' means agency process for formulating, amending, or repealing a rule."). "Rule" is defined in 5 U.S.C. § 551(4) (2010) (Title 5—Chapter 5: Administrative Procedure) ("'Rule' means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing.").

[3] For an explanation of the difference between legislative/substantive rules and non-legislative/non-substantive rules, see Syncor International Corp. v. Shalala, 127 F.3d 90 (D.C. Cir. 1997) (“the crucial distinction between [a substantive rule] and the other two techniques is that a substantive rule modifies or adds to a legal norm based on the agency's own authority. … That authority flows from a congressional delegation to promulgate substantive rules, to engage in supplementary lawmaking. And, it is because the agency is engaged in lawmaking that the APA requires it to comply with notice and comment.”); see also Pacific Gas & Electric Co. v. Federal Power Commission, 506 F.2d 22, 38-39 (D.C. Cir. 1974) (“The critical distinction between a substantive rule and a general statement of policy is the different practical effect that these two types of pronouncements have in subsequent administrative proceedings. A properly adopted substantive rule establishes a standard of conduct which has the force of law.  In subsequent administrative proceedings involving a substantive rule, the issues are whether the adjudicated facts conform to the rule and whether the rule should be waived or applied in that particular instance.  The underlying policy embodied in the rule is not generally subject to challenge before the agency. A general statement of policy, on the other hand, does not establish a ‘binding norm.’ It is not finally determinative of the issues or rights to which it is addressed.  The agency cannot apply or rely upon a general statement of policy as law because a general statement of policy only announces what the agency seeks to establish as policy.  A policy statement announces the agency's tentative intentions for the future.  When the agency applies the policy in a particular situation, it must be prepared to support the policy just as if the policy statement had never been issued. An agency cannot escape its responsibility to present evidence and reasoning supporting its substantive rules by announcing binding precedent in the form of a general statement of policy.”) (internal citations omitted).

[4] See Attorney General's Manual on the Administrative Procedure Act 38 (1947) (“Substantive rules--rules, other than organizational or procedural under section 3 (a) (1) and (2), issued by an agency pursuant to statutory authority and which implement the statute, […]. Such rules have the force and effect of law.”).

[5] See Attorney General's Manual on the Administrative Procedure Act 38 (1947) (“Substantive rules--rules, other than organizational or procedural under section 3 (a) (1) and (2), issued by an agency pursuant to statutory authority and which implement the statute, […]. Such rules have the force and effect of law.”) (emphasis added).

[6] In addition to “informal” rulemaking there is also a set of procedures for “formal” rulemaking under the APA. When a statute requires “formal” rulemaking, agencies must not only afford the basic requirements for informal “notice-and-comment” rulemaking contained in Section 553 of the APA, but they must also augment those procedures with the additional procedures contained in Sections 557 and 558 of the APA. See 5 U.S.C. § 553(c) (“[…] When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title [5 U.S.C. §§ 556 and 557] apply instead of this subsection.”).

See also 5 U.S.C. § 557 (2010) ("Initial decisions; conclusiveness; review by agency; submissions by parties; contents of decisions; record: (a) This section applies, according to the provisions thereof, when a hearing is required to be conducted in accordance with section 556 of this title [5 U.S.C. § 556]. (b) When the agency did not preside at the reception of the evidence, the presiding employee or, in cases not subject to section 554(d) of this title [5 U.S.C. § 554(d)], an employee qualified to preside at hearings pursuant to section 556 of this title [5 U.S.C. § 556], shall initially decide the case unless the agency requires, either in specific cases or by general rule, the entire record to be certified to it for decision. When the presiding employee makes an initial decision, that decision then becomes the decision of the agency without further proceedings unless there is an appeal to, or review on motion of, the agency within time provided by rule. On appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision except as it may limit the issues on notice or by rule. When the agency makes the decision without having presided at the reception of the evidence, the presiding employee or an employee qualified to preside at hearings pursuant to section 556 of this title [5 U.S.C. § 556] shall first recommend a decision, except that in rule making or determining applications for initial licenses— (1) instead thereof the agency may issue a tentative decision or one of its responsible employees may recommend a decision; or (2) this procedure may be omitted in a case in which the agency finds on the record that due and timely execution of its functions imperatively and unavoidably so requires. (c) Before a recommended, initial, or tentative decision, or a decision on agency review of the decision of subordinate employees, the parties are entitled to a reasonable opportunity to submit for the consideration of the employees participating in the decisions—(1) proposed findings and conclusions; or (2) exceptions to the decisions or recommended decisions of subordinate employees or to tentative agency decisions; and (3) supporting reasons for the exceptions or proposed findings or conclusions. The record shall show the ruling on each finding, conclusion, or exception presented. All decisions, including initial, recommended, and tentative decisions, are a part of the record and shall include a statement of—(A) findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record; and (B) the appropriate rule, order, sanction, relief, or denial thereof. (d) (1) In any agency proceeding which is subject to subsection (a) of this section, except to the extent required for the disposition of ex parte matters as authorized by law—(A) no interested person outside the agency shall make or knowingly cause to be made to any member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, an ex parte communication relevant to the merits of the proceeding; (B) no member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, shall make or knowingly cause to be made to any interested person outside the agency an ex parte communication relevant to the merits of the proceeding; (C) a member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of such proceeding who receives, or who makes or knowingly causes to be made, a communication prohibited by this subsection shall place on the public record of the proceeding: (i) all such written communications; (ii) memoranda stating the substance of all such oral communications; and (iii) all written responses, and memoranda stating the substance of all oral responses, to the materials described in clauses (i) and (ii) of this subparagraph; (D) upon receipt of a communication knowingly made or knowingly caused to be made by a party in violation of this subsection, the agency, administrative law judge, or other employee presiding at the hearing may, to the extent consistent with the interests of justice and the policy of the underlying statutes, require the party to show cause why his claim or interest in the proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected on account of such violation; and (E) the prohibitions of this subsection shall apply beginning at such time as the agency may designate, but in no case shall they begin to apply later than the time at which a proceeding is noticed for hearing unless the person responsible for the communication has knowledge that it will be noticed, in which case the prohibitions shall apply beginning at the time of his acquisition of such knowledge. (2) This subsection does not constitute authority to withhold information from Congress.").

See also 5 U.S.C. § 558 (2010) ("Imposition of Sanctions; Determination of Applications for Licenses; Suspension, Revocation, and Expiration of Licenses: (a) This section applies, according to the provisions thereof, to the exercise of a power or authority. (b) A sanction may not be imposed or a substantive rule or order issued except within jurisdiction delegated to the agency and as authorized by law. (c) When application is made for a license required by law, the agency, with due regard for the rights and privileges of all the interested parties or adversely affected persons and within a reasonable time, shall set and complete proceedings required to be conducted in accordance with sections 556 and 557 of this title [5 U.S.C. §§ 556 and 557] or other proceedings required by law and shall make its decision. Except in cases of willfulness or those in which public health, interest, or safety requires otherwise, the withdrawal, suspension, revocation, or annulment of a license is lawful only if, before the institution of agency proceedings therefor, the licensee has been given—(1) notice by the agency in writing of the facts or conduct which may warrant the action; and (2) opportunity to demonstrate or achieve compliance with all lawful requirements. When the licensee has made timely and sufficient application for a renewal or a new license in accordance with agency rules, a license with reference to an activity of a continuing nature does not expire until the application has been finally determined by the agency.").

[7] 5 U.S.C. § 553 (2010) ("(a) This section applies, according to the provisions thereof, except to the extent that there is involved—(1) a military or foreign affairs function of the United States; or (2) a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts. (b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include—(1) a statement of the time, place, and nature of public rule making proceedings; (2) reference to the legal authority under which the rule is proposed; and (3) either the terms or substance of the proposed rule or a description of the subjects and issues involved. Except when notice or hearing is required by statute, this subsection does not apply— (A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or (B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. (c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title [5 U.S.C. §§ 556 and 557] apply instead of this subsection. (d) The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except— (1) a substantive rule which grants or recognizes an exemption or relieves a restriction; (2) interpretative rules and statements of policy; or (3) as otherwise provided by the agency for good cause found and published with the rule. (e) Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.").

[8] These three categories of non-legislative rules are mentioned in 5 U.S.C. § 553(b), which exempts them from most of § 553’s informal rulemaking procedures that are mandatory by default for the promulgation of legislative rules.  See generally 5 U.S.C. § 553(b)(A) ("[...] Except when notice or hearing is required by statute, this subsection [5 U.S.C. § 553(b)] does not apply—(A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; [...]). In addition to these basic 3 categories of non-legislative rules, some scholars add an additional category they call “publication rules.” Their idea stems from a section in the Freedom of Information Act, codified at 5 U.S.C. § 552(a)(2) that requires agencies to “make available for public inspection” all “statements of policy and interpretations” not published in the Federal Register, as well as “administrative staff manuals and instructions to staff that affect a member of the public.” Proponents of the additional category of “publication rules” argue that these internal administrative manuals represent a category of publication entirely separate from the basic 3 categories of non-legislative rules, i.e. interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice. See Peter L. Strauss, The Rulemaking Continuum, 41 Duke L. J. 1463 (1992); see also Peter L. Strauss, Todd Rakoff, Roy A. Schotland, & Cynthia R. Farina, Gellhorn and Byse’s Administrative Law: Cases and Comments 388, at note 1 (9th Ed. 1995).

[9] See Attorney General's Manual on the Administrative Procedure Act 38 (1947) (“Interpretative rule--rules or statements issued by an agency to advise the public of the agency's construction of the statutes and rules which it administers. See Final Report. p. 27; Senate Comparative Print of June 1945, p. 6 (Sen. Doc. p. 18); Senate Hearings (1941) p. 330.”).

[10] See Attorney General's Manual on the Administrative Procedure Act (1947) 38 (“General statements of policy--statements issued by an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power.”); see also Pacific Gas & Electric Co. v. Federal Power Commission, 506 F.2d 22, 38-39 (D.C. Cir. 1974) (“The critical distinction between a substantive rule and a general statement of policy is the different practical effect that these two types of pronouncements have in subsequent administrative proceedings. A properly adopted substantive rule establishes a standard of conduct which has the force of law.  In subsequent administrative proceedings involving a substantive rule, the issues are whether the adjudicated facts conform to the rule and whether the rule should be waived or applied in that particular instance.  The underlying policy embodied in the rule is not generally subject to challenge before the agency. A general statement of policy, on the other hand, does not establish a ‘binding norm.’ It is not finally determinative of the issues or rights to which it is addressed.  The agency cannot apply or rely upon a general statement of policy as law because a general statement of policy only announces what the agency seeks to establish as policy.  A policy statement announces the agency's tentative intentions for the future.  When the agency applies the policy in a particular situation, it must be prepared to support the policy just as if the policy statement had never been issued. An agency cannot escape its responsibility to present evidence and reasoning supporting its substantive rules by announcing binding precedent in the form of a general statement of policy.”) (internal citations omitted).

[11] For an explanation of the difference between legislative/substantive rules and non-legislative/non-substantive rules, see Syncor International Corp. v. Shalala, 127 F.3d 90 (D.C. Cir. 1997) (“the crucial distinction between [a substantive rule] and the other two techniques is that a substantive rule modifies or adds to a legal norm based on the agency's own authority. … That authority flows from a congressional delegation to promulgate substantive rules, to engage in supplementary lawmaking. And, it is because the agency is engaged in lawmaking that the APA requires it to comply with notice and comment.”); see also Pacific Gas & Electric Co. v. Federal Power Commission, 506 F.2d 22, 38-39 (D.C. Cir. 1974) (“The critical distinction between a substantive rule and a general statement of policy is the different practical effect that these two types of pronouncements have in subsequent administrative proceedings. A properly adopted substantive rule establishes a standard of conduct which has the force of law.  In subsequent administrative proceedings involving a substantive rule, the issues are whether the adjudicated facts conform to the rule and whether the rule should be waived or applied in that particular instance.  The underlying policy embodied in the rule is not generally subject to challenge before the agency. A general statement of policy, on the other hand, does not establish a ‘binding norm.’ It is not finally determinative of the issues or rights to which it is addressed.  The agency cannot apply or rely upon a general statement of policy as law because a general statement of policy only announces what the agency seeks to establish as policy.  A policy statement announces the agency's tentative intentions for the future.  When the agency applies the policy in a particular situation, it must be prepared to support the policy just as if the policy statement had never been issued. An agency cannot escape its responsibility to present evidence and reasoning supporting its substantive rules by announcing binding precedent in the form of a general statement of policy.”) (internal citations omitted).

[12] See Attorney General's Manual on the Administrative Procedure Act 38 (1947) (“Substantive rules--rules, other than organizational or procedural under section 3 (a) (1) and (2), issued by an agency pursuant to statutory authority and which implement the statute, […]. Such rules have the force and effect of law.”).

[13] See Attorney General's Manual on the Administrative Procedure Act 38 (1947) (“Substantive rules--rules, other than organizational or procedural under section 3 (a) (1) and (2), issued by an agency pursuant to statutory authority and which implement the statute, […]. Such rules have the force and effect of law.”) (emphasis added).

[14] In addition to “informal” rulemaking there is also a set of procedures for “formal” rulemaking under the APA. When a statute requires “formal” rulemaking, agencies must not only afford the basic requirements for informal “notice-and-comment” rulemaking contained in Section 553 of the APA, but they must also augment those procedures with the additional procedures contained in Sections 557 and 558 of the APA. See 5 U.S.C. § 553(c) (“[…] When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title [5 U.S.C. §§ 556 and 557] apply instead of this subsection.”).

See also 5 U.S.C. § 557 (2010) ("Initial decisions; conclusiveness; review by agency; submissions by parties; contents of decisions; record: (a) This section applies, according to the provisions thereof, when a hearing is required to be conducted in accordance with section 556 of this title [5 U.S.C. § 556]. (b) When the agency did not preside at the reception of the evidence, the presiding employee or, in cases not subject to section 554(d) of this title [5 U.S.C. § 554(d)], an employee qualified to preside at hearings pursuant to section 556 of this title [5 U.S.C. § 556], shall initially decide the case unless the agency requires, either in specific cases or by general rule, the entire record to be certified to it for decision. When the presiding employee makes an initial decision, that decision then becomes the decision of the agency without further proceedings unless there is an appeal to, or review on motion of, the agency within time provided by rule. On appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision except as it may limit the issues on notice or by rule. When the agency makes the decision without having presided at the reception of the evidence, the presiding employee or an employee qualified to preside at hearings pursuant to section 556 of this title [5 U.S.C. § 556] shall first recommend a decision, except that in rule making or determining applications for initial licenses— (1) instead thereof the agency may issue a tentative decision or one of its responsible employees may recommend a decision; or (2) this procedure may be omitted in a case in which the agency finds on the record that due and timely execution of its functions imperatively and unavoidably so requires. (c) Before a recommended, initial, or tentative decision, or a decision on agency review of the decision of subordinate employees, the parties are entitled to a reasonable opportunity to submit for the consideration of the employees participating in the decisions—(1) proposed findings and conclusions; or (2) exceptions to the decisions or recommended decisions of subordinate employees or to tentative agency decisions; and (3) supporting reasons for the exceptions or proposed findings or conclusions. The record shall show the ruling on each finding, conclusion, or exception presented. All decisions, including initial, recommended, and tentative decisions, are a part of the record and shall include a statement of—(A) findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record; and (B) the appropriate rule, order, sanction, relief, or denial thereof. (d) (1) In any agency proceeding which is subject to subsection (a) of this section, except to the extent required for the disposition of ex parte matters as authorized by law—(A) no interested person outside the agency shall make or knowingly cause to be made to any member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, an ex parte communication relevant to the merits of the proceeding; (B) no member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, shall make or knowingly cause to be made to any interested person outside the agency an ex parte communication relevant to the merits of the proceeding; (C) a member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of such proceeding who receives, or who makes or knowingly causes to be made, a communication prohibited by this subsection shall place on the public record of the proceeding: (i) all such written communications; (ii) memoranda stating the substance of all such oral communications; and (iii) all written responses, and memoranda stating the substance of all oral responses, to the materials described in clauses (i) and (ii) of this subparagraph; (D) upon receipt of a communication knowingly made or knowingly caused to be made by a party in violation of this subsection, the agency, administrative law judge, or other employee presiding at the hearing may, to the extent consistent with the interests of justice and the policy of the underlying statutes, require the party to show cause why his claim or interest in the proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected on account of such violation; and (E) the prohibitions of this subsection shall apply beginning at such time as the agency may designate, but in no case shall they begin to apply later than the time at which a proceeding is noticed for hearing unless the person responsible for the communication has knowledge that it will be noticed, in which case the prohibitions shall apply beginning at the time of his acquisition of such knowledge. (2) This subsection does not constitute authority to withhold information from Congress.").

See also 5 U.S.C. § 558 (2010) ("Imposition of Sanctions; Determination of Applications for Licenses; Suspension, Revocation, and Expiration of Licenses: (a) This section applies, according to the provisions thereof, to the exercise of a power or authority. (b) A sanction may not be imposed or a substantive rule or order issued except within jurisdiction delegated to the agency and as authorized by law. (c) When application is made for a license required by law, the agency, with due regard for the rights and privileges of all the interested parties or adversely affected persons and within a reasonable time, shall set and complete proceedings required to be conducted in accordance with sections 556 and 557 of this title [5 U.S.C. §§ 556 and 557] or other proceedings required by law and shall make its decision. Except in cases of willfulness or those in which public health, interest, or safety requires otherwise, the withdrawal, suspension, revocation, or annulment of a license is lawful only if, before the institution of agency proceedings therefor, the licensee has been given—(1) notice by the agency in writing of the facts or conduct which may warrant the action; and (2) opportunity to demonstrate or achieve compliance with all lawful requirements. When the licensee has made timely and sufficient application for a renewal or a new license in accordance with agency rules, a license with reference to an activity of a continuing nature does not expire until the application has been finally determined by the agency.").

[15] 5 U.S.C. § 553 (2010) ("(a) This section applies, according to the provisions thereof, except to the extent that there is involved—(1) a military or foreign affairs function of the United States; or (2) a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts. (b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include—(1) a statement of the time, place, and nature of public rule making proceedings; (2) reference to the legal authority under which the rule is proposed; and (3) either the terms or substance of the proposed rule or a description of the subjects and issues involved. Except when notice or hearing is required by statute, this subsection does not apply— (A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or (B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. (c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title [5 U.S.C. §§ 556 and 557] apply instead of this subsection. (d) The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except— (1) a substantive rule which grants or recognizes an exemption or relieves a restriction; (2) interpretative rules and statements of policy; or (3) as otherwise provided by the agency for good cause found and published with the rule. (e) Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.").

[16] These three categories of non-legislative rules are mentioned in 5 U.S.C. § 553(b), which exempts them from most of § 553’s informal rulemaking procedures that are mandatory by default for the promulgation of legislative rules.  See generally 5 U.S.C. § 553(b)(A) ("[...] Except when notice or hearing is required by statute, this subsection [5 U.S.C. § 553(b)] does not apply—(A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; [...]). In addition to these basic 3 categories of non-legislative rules, some scholars add an additional category they call “publication rules.” Their idea stems from a section in the Freedom of Information Act, codified at 5 U.S.C. § 552(a)(2) that requires agencies to “make available for public inspection” all “statements of policy and interpretations” not published in the Federal Register, as well as “administrative staff manuals and instructions to staff that affect a member of the public.” Proponents of the additional category of “publication rules” argue that these internal administrative manuals represent a category of publication entirely separate from the basic 3 categories of non-legislative rules, i.e. interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice. See Peter L. Strauss, The Rulemaking Continuum, 41 Duke L. J. 1463 (1992); see also Peter L. Strauss, Todd Rakoff, Roy A. Schotland, & Cynthia R. Farina, Gellhorn and Byse’s Administrative Law: Cases and Comments 388, at note 1 (9th Ed. 1995).

[17] See Attorney General's Manual on the Administrative Procedure Act 38 (1947) (“Interpretative rule--rules or statements issued by an agency to advise the public of the agency's construction of the statutes and rules which it administers. See Final Report. p. 27; Senate Comparative Print of June 1945, p. 6 (Sen. Doc. p. 18); Senate Hearings (1941) p. 330.”).

[18] See Attorney General's Manual on the Administrative Procedure Act (1947) 38 (“General statements of policy--statements issued by an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power.”); see also Pacific Gas & Electric Co. v. Federal Power Commission, 506 F.2d 22, 38-39 (D.C. Cir. 1974) (“The critical distinction between a substantive rule and a general statement of policy is the different practical effect that these two types of pronouncements have in subsequent administrative proceedings. A properly adopted substantive rule establishes a standard of conduct which has the force of law.  In subsequent administrative proceedings involving a substantive rule, the issues are whether the adjudicated facts conform to the rule and whether the rule should be waived or applied in that particular instance.  The underlying policy embodied in the rule is not generally subject to challenge before the agency. A general statement of policy, on the other hand, does not establish a ‘binding norm.’ It is not finally determinative of the issues or rights to which it is addressed.  The agency cannot apply or rely upon a general statement of policy as law because a general statement of policy only announces what the agency seeks to establish as policy.  A policy statement announces the agency's tentative intentions for the future.  When the agency applies the policy in a particular situation, it must be prepared to support the policy just as if the policy statement had never been issued. An agency cannot escape its responsibility to present evidence and reasoning supporting its substantive rules by announcing binding precedent in the form of a general statement of policy.”) (internal citations omitted).

[19] See Attorney General's Manual on the Administrative Procedure Act 14-15 (1947) (“More broadly, the entire Act is based upon a dichotomy between rule making and adjudication. Examination of the legislative history of the definitions and of the differences in the required procedures for rule making and for adjudication discloses highly practical concepts of rule making and adjudication. Rule making is agency action which regulates the future conduct of either groups of persons or a single person; it is essentially legislative in nature, not only because it operates in the future but also because it is primarily concerned with policy considerations. The object of the rule making proceeding is the implementation or prescription of law or policy for the future, rather than the evaluation of a respondent's past conduct. Typically, the issues relate not to the evidentiary facts, as to which the veracity and demeanor of witnesses would often be important, but rather to the policy-making conclusions to be drawn from the facts. Senate Hearings (1941) pp. 657, 1298, 1451. Conversely, adjudication is concerned with the determination of past and present rights and liabilities. Normally, there is involved a decision as to whether past conduct was unlawful, so that the proceeding is characterized by an accusatory flavor and may result in disciplinary action. Or, it may involve the determination of a person's right to benefits under existing law so that the issues relate to whether he is within the established category of persons entitled to such benefits. In such proceedings, the issues of fact are often sharply controverted. Sen. Rep. p. 39 (Sen. Doc. p. 225); 92 Cong. Rec. 5648 (Sen. Doc. p. 353).”).

[20] “Rulemaking” is defined in Section 551(5) of the APA. See 5 U.S.C. § 551(5) (2010) (Title 5—Chapter 5: Administrative Procedure) ("'Rule Making' means agency process for formulating, amending, or repealing a rule."). "Rule" is defined in 5 U.S.C. § 551(4) (2010) (Title 5—Chapter 5: Administrative Procedure) ("'Rule' means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing.").

[21] “Adjudication” is defined in Section 551(7) of the APA. See 5 U.S.C. § 551(7) (2010) (Title 5—Chapter 5: Administrative Procedure) ("'Adjudication' means agency process for the formulation of an order."). "Order" is defined in 5 U.S.C. § 551(6) (2010) (Title 5—Chapter 5: Administrative Procedure) ("'Order' means the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing.").

[22] See Congressional Research Serv., General Management Laws: A Compendium, § I(B), RL30795 (MAY 19, 2004), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30795_5-19-2004.pdf (“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.”).

[23] “Formal” rulemaking is triggered when an enabling statutes requires a particular type of rules be promulgated by an agency through rulemaking “on the record after opportunity for an agency hearing.” 5 U.S.C. § 553(c). When formal rulemaking is required, agencies must not only afford the basic requirements for informal “notice-and-comment” rulemaking contained in Section 553 of the APA, but they must also augment those procedures with the additional procedures contained in Sections 557 and 558 of the APA. See 5 U.S.C. § 553(c) (“[…] When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title [5 U.S.C. §§ 556 and 557] apply instead of this subsection.”).

The additional procedures in Sections 557 and 558 are substantial, trial-like procedures that are also used in formal adjudication under Section 554 of the APA. See 5 U.S.C. § 557 (2010) ("Initial decisions; conclusiveness; review by agency; submissions by parties; contents of decisions; record: (a) This section applies, according to the provisions thereof, when a hearing is required to be conducted in accordance with section 556 of this title [5 U.S.C. § 556]. (b) When the agency did not preside at the reception of the evidence, the presiding employee or, in cases not subject to section 554(d) of this title [5 U.S.C. § 554(d)], an employee qualified to preside at hearings pursuant to section 556 of this title [5 U.S.C. § 556], shall initially decide the case unless the agency requires, either in specific cases or by general rule, the entire record to be certified to it for decision. When the presiding employee makes an initial decision, that decision then becomes the decision of the agency without further proceedings unless there is an appeal to, or review on motion of, the agency within time provided by rule. On appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision except as it may limit the issues on notice or by rule. When the agency makes the decision without having presided at the reception of the evidence, the presiding employee or an employee qualified to preside at hearings pursuant to section 556 of this title [5 U.S.C. § 556] shall first recommend a decision, except that in rule making or determining applications for initial licenses— (1) instead thereof the agency may issue a tentative decision or one of its responsible employees may recommend a decision; or (2) this procedure may be omitted in a case in which the agency finds on the record that due and timely execution of its functions imperatively and unavoidably so requires. (c) Before a recommended, initial, or tentative decision, or a decision on agency review of the decision of subordinate employees, the parties are entitled to a reasonable opportunity to submit for the consideration of the employees participating in the decisions—(1) proposed findings and conclusions; or (2) exceptions to the decisions or recommended decisions of subordinate employees or to tentative agency decisions; and (3) supporting reasons for the exceptions or proposed findings or conclusions. The record shall show the ruling on each finding, conclusion, or exception presented. All decisions, including initial, recommended, and tentative decisions, are a part of the record and shall include a statement of—(A) findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record; and (B) the appropriate rule, order, sanction, relief, or denial thereof. (d) (1) In any agency proceeding which is subject to subsection (a) of this section, except to the extent required for the disposition of ex parte matters as authorized by law—(A) no interested person outside the agency shall make or knowingly cause to be made to any member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, an ex parte communication relevant to the merits of the proceeding; (B) no member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, shall make or knowingly cause to be made to any interested person outside the agency an ex parte communication relevant to the merits of the proceeding; (C) a member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of such proceeding who receives, or who makes or knowingly causes to be made, a communication prohibited by this subsection shall place on the public record of the proceeding: (i) all such written communications; (ii) memoranda stating the substance of all such oral communications; and (iii) all written responses, and memoranda stating the substance of all oral responses, to the materials described in clauses (i) and (ii) of this subparagraph; (D) upon receipt of a communication knowingly made or knowingly caused to be made by a party in violation of this subsection, the agency, administrative law judge, or other employee presiding at the hearing may, to the extent consistent with the interests of justice and the policy of the underlying statutes, require the party to show cause why his claim or interest in the proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected on account of such violation; and (E) the prohibitions of this subsection shall apply beginning at such time as the agency may designate, but in no case shall they begin to apply later than the time at which a proceeding is noticed for hearing unless the person responsible for the communication has knowledge that it will be noticed, in which case the prohibitions shall apply beginning at the time of his acquisition of such knowledge. (2) This subsection does not constitute authority to withhold information from Congress.").

See also 5 U.S.C. § 558 (2010) ("Imposition of Sanctions; Determination of Applications for Licenses; Suspension, Revocation, and Expiration of Licenses: (a) This section applies, according to the provisions thereof, to the exercise of a power or authority. (b) A sanction may not be imposed or a substantive rule or order issued except within jurisdiction delegated to the agency and as authorized by law. (c) When application is made for a license required by law, the agency, with due regard for the rights and privileges of all the interested parties or adversely affected persons and within a reasonable time, shall set and complete proceedings required to be conducted in accordance with sections 556 and 557 of this title [5 U.S.C. §§ 556 and 557] or other proceedings required by law and shall make its decision. Except in cases of willfulness or those in which public health, interest, or safety requires otherwise, the withdrawal, suspension, revocation, or annulment of a license is lawful only if, before the institution of agency proceedings therefor, the licensee has been given—(1) notice by the agency in writing of the facts or conduct which may warrant the action; and (2) opportunity to demonstrate or achieve compliance with all lawful requirements. When the licensee has made timely and sufficient application for a renewal or a new license in accordance with agency rules, a license with reference to an activity of a continuing nature does not expire until the application has been finally determined by the agency.").

[24] 5 U.S.C. § 553 (2010); see also Congressional Research Serv., General Management Laws: A Compendium, § I(B), RL30795 (MAY 19, 2004), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30795_5-19-2004.pdf (“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 12866 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”).

[25] “Formal” adjudication is triggered when an enabling statutes requires a particular type of agency adjudication “to be determined on the record after opportunity for an agency hearing.” 5 U.S.C. § 554 (2010) ("Adjudications: (a) This section applies, according to the provisions thereof, in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing, except to the extent that there is involved— (1) a matter subject to a subsequent trial of the law and the facts de novo in a court; (2) the selection or tenure of an employee, except a [an] administrative law judge appointed under section 3105 of this title [5 U.S.C. § 3105]; (3) proceedings in which decisions rest solely on inspections, tests, or elections; (4) the conduct of military or foreign affairs functions; (5) cases in which an agency is acting as an agent for a court; or (6) the certification of worker representatives. (b) Persons entitled to notice of an agency hearing shall be timely informed of— (1) the time, place, and nature of the hearing; (2) the legal authority and jurisdiction under which the hearing is to be held; and (3) the matters of fact and law asserted. When private persons are the moving parties, other parties to the proceeding shall give prompt notice of issues controverted in fact or law; and in other instances agencies may by rule require responsive pleading. In fixing the time and place for hearings, due regard shall be had for the convenience and necessity of the parties or their representatives. (c) The agency shall give all interested parties opportunity for— (1) the submission and consideration of facts, arguments, offers of settlement, or proposals of adjustment when time, the nature of the proceeding, and the public interest permit; and (2) to the extent that the parties are unable so to determine a controversy by consent, hearing and decision on notice and in accordance with sections 556 and 557 of this title [5 U.S.C. §§ 556 and 557]. (d) The employee who presides at the reception of evidence pursuant to section 556 of this title [5 U.S.C. § 556] shall make the recommended decision or initial decision required by section 557 of this title [5 U.S.C. § 557], unless he becomes unavailable to the agency. Except to the extent required for the disposition of ex parte matters as authorized by law, such an employee may not— (1) consult a person or party on a fact in issue, unless on notice and opportunity for all parties to participate; or (2) be responsible to or subject to the supervision or direction of an employee or agent engaged in the performance of investigative or prosecuting functions for an agency. An employee or agent engaged in the performance of investigative or prosecuting functions for an agency in a case may not, in that or a factually related case, participate or advise in the decision, recommended decision, or agency review pursuant to section 557 of this title [5 U.S.C. § 557], except as witness or counsel in public proceedings. This subsection does not apply— (A) in determining applications for initial licenses; (B) to proceedings involving the validity or application of rates, facilities, or practices of public utilities or carriers; or (C) to the agency or a member or members of the body comprising the agency. (e) The agency, with like effect as in the case of other orders, and in its sound discretion, may issue a declaratory order to terminate a controversy or remove uncertainty.").

The additional procedures in Sections 557 and 558 are also used along with Section 554 in formal adjudication. See 5 U.S.C. § 557 (2010) ("Initial decisions; conclusiveness; review by agency; submissions by parties; contents of decisions; record: (a) This section applies, according to the provisions thereof, when a hearing is required to be conducted in accordance with section 556 of this title [5 U.S.C. § 556]. (b) When the agency did not preside at the reception of the evidence, the presiding employee or, in cases not subject to section 554(d) of this title [5 U.S.C. § 554(d)], an employee qualified to preside at hearings pursuant to section 556 of this title [5 U.S.C. § 556], shall initially decide the case unless the agency requires, either in specific cases or by general rule, the entire record to be certified to it for decision. When the presiding employee makes an initial decision, that decision then becomes the decision of the agency without further proceedings unless there is an appeal to, or review on motion of, the agency within time provided by rule. On appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision except as it may limit the issues on notice or by rule. When the agency makes the decision without having presided at the reception of the evidence, the presiding employee or an employee qualified to preside at hearings pursuant to section 556 of this title [5 U.S.C. § 556] shall first recommend a decision, except that in rule making or determining applications for initial licenses— (1) instead thereof the agency may issue a tentative decision or one of its responsible employees may recommend a decision; or (2) this procedure may be omitted in a case in which the agency finds on the record that due and timely execution of its functions imperatively and unavoidably so requires. (c) Before a recommended, initial, or tentative decision, or a decision on agency review of the decision of subordinate employees, the parties are entitled to a reasonable opportunity to submit for the consideration of the employees participating in the decisions—(1) proposed findings and conclusions; or (2) exceptions to the decisions or recommended decisions of subordinate employees or to tentative agency decisions; and (3) supporting reasons for the exceptions or proposed findings or conclusions. The record shall show the ruling on each finding, conclusion, or exception presented. All decisions, including initial, recommended, and tentative decisions, are a part of the record and shall include a statement of—(A) findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record; and (B) the appropriate rule, order, sanction, relief, or denial thereof. (d) (1) In any agency proceeding which is subject to subsection (a) of this section, except to the extent required for the disposition of ex parte matters as authorized by law—(A) no interested person outside the agency shall make or knowingly cause to be made to any member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, an ex parte communication relevant to the merits of the proceeding; (B) no member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, shall make or knowingly cause to be made to any interested person outside the agency an ex parte communication relevant to the merits of the proceeding; (C) a member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of such proceeding who receives, or who makes or knowingly causes to be made, a communication prohibited by this subsection shall place on the public record of the proceeding: (i) all such written communications; (ii) memoranda stating the substance of all such oral communications; and (iii) all written responses, and memoranda stating the substance of all oral responses, to the materials described in clauses (i) and (ii) of this subparagraph; (D) upon receipt of a communication knowingly made or knowingly caused to be made by a party in violation of this subsection, the agency, administrative law judge, or other employee presiding at the hearing may, to the extent consistent with the interests of justice and the policy of the underlying statutes, require the party to show cause why his claim or interest in the proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected on account of such violation; and (E) the prohibitions of this subsection shall apply beginning at such time as the agency may designate, but in no case shall they begin to apply later than the time at which a proceeding is noticed for hearing unless the person responsible for the communication has knowledge that it will be noticed, in which case the prohibitions shall apply beginning at the time of his acquisition of such knowledge. (2) This subsection does not constitute authority to withhold information from Congress.").

See also 5 U.S.C. § 558 (2010) ("Imposition of Sanctions; Determination of Applications for Licenses; Suspension, Revocation, and Expiration of Licenses: (a) This section applies, according to the provisions thereof, to the exercise of a power or authority. (b) A sanction may not be imposed or a substantive rule or order issued except within jurisdiction delegated to the agency and as authorized by law. (c) When application is made for a license required by law, the agency, with due regard for the rights and privileges of all the interested parties or adversely affected persons and within a reasonable time, shall set and complete proceedings required to be conducted in accordance with sections 556 and 557 of this title [5 U.S.C. §§ 556 and 557] or other proceedings required by law and shall make its decision. Except in cases of willfulness or those in which public health, interest, or safety requires otherwise, the withdrawal, suspension, revocation, or annulment of a license is lawful only if, before the institution of agency proceedings therefor, the licensee has been given—(1) notice by the agency in writing of the facts or conduct which may warrant the action; and (2) opportunity to demonstrate or achieve compliance with all lawful requirements. When the licensee has made timely and sufficient application for a renewal or a new license in accordance with agency rules, a license with reference to an activity of a continuing nature does not expire until the application has been finally determined by the agency.").

[26] See Congressional Research Serv., General Management Laws: A Compendium, § I(B), RL30795 (MAY 19, 2004), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30795_5-19-2004.pdf (“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.”).

[27] Administrative Procedure Act of 1946, as amended, 5 U.S.C. § 551(5) (2010) (Title 5—Chapter 5: Administrative Procedure) ("'Rule Making' means agency process for formulating, amending, or repealing a rule."). "Rule" is defined in 5 U.S.C. § 551(4) (2010) (Title 5—Chapter 5: Administrative Procedure) ("'Rule' means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing."); see also Black’s Law Dictionary 1332 (7th ed. 1999).

[28] NOTE: The term “rule” also “includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing.” Those aren’t relevant to intelligence, but I wanted you to know the whole definition. Administrative Procedure Act of 1946, U.S.C. § 551(4) (2010) (Title 5—Chapter 5: Administrative Procedure) ("'Rule' means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing.")(emphasis added).

[29] See generally Congressional Research Serv., General Management Laws: A Compendium, § I(B), RL30795 (MAY 19, 2004), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30795_5-19-2004.pdf (“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.”).

[30] See e.g. Memorandum, USSID 18: Reporting Guidance on Former President Carter’s Involvement in the Bosnian Peace Process (U) – INFORMATION, para. 2, Nat’l Sec. Agency (Dec. 15, 1994) (considering the question of whether Former President Jimmy Carter could be identified in intelligence reports related to a peacekeeping trip he took to Bosnia as a civilian in 1994, and ultimately deciding that ““[s]ince Former President Carter will not be officially representing the U.S. Government, any reports that reflect either his travels to Bosnia or his participation in efforts to end the war may identify him only as a ‘U.S. person.’ Only if Former President Carter eventually becomes an official envoy of the U.S. Government in this activity, could he then be identified as a ‘former U.S. President.’”).

[31] Federal Register Act of 1935, 44 U.S.C. § 1505 (2010) ("Documents to be published in Federal Register: (a) Proclamations and Executive Orders; documents having general applicability and legal effect; documents required to be published by Congress.  There shall be published in the Federal Register— (1) 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; (2) documents or classes of documents that the President may determine from time to time have general applicability and legal effect; and (3) documents or classes of documents that may be required so to be published by Act of Congress. For the purposes of this chapter [44 U.S.C. §§ 1501 et seq.] every document or order which prescribes a penalty has general applicability and legal effect. (b) Documents authorized to be published by regulations; comments and news items excluded.  In addition to the foregoing there shall also be published in the Federal Register other documents or classes of documents authorized to be published by regulations prescribed under this chapter [44 U.S.C. §§ 1501 et seq.] with the approval of the President, but comments or news items of any character may not be published in the Federal Register."). This requirement is similar to the informal rulemaking publication requirements later enacted as Section 553 of the Administrative Procedure Act of 1946. See Attorney General's Manual on the Administrative Procedure Act (1947) 21 (“Section 3 (a) (3) provides that every agency shall separately state and currently publish in the Federal Register "(3) substantive rules adopted as authorized by law and statements of general policy or interpretations formulated and adopted by the agency for the guidance of the public, but not rules addressed to and served upon named persons in accordance with law." This exemption for "rules addressed to and served upon named persons in accordance with law" is designed to avoid filling the Federal Register with a great mass of particularized rule making, such as schedules of rates, which have always been satisfactorily handled without general publication in the Federal Register. The phrase "substantive rules adopted as authorized by law" refers, of course, to rules issued by an agency to implement statutory policy.”). The publication requirement for agency rules and other documents was greatly expanded by enactment of the Freedom of Information Act. See Freedom of Information Act, 5 U.S.C. § 552 (2010) (“(a) Each agency shall make available to the public information as follows: (1) Each agency shall separately state and currently publish in the Federal Register for the guidance of the public—(A) descriptions of its central and field organization and the established places at which, the employees (and in the case of a uniformed service, the members) from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions; (B) statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available; (C) rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations; (D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency; and (E) each amendment, revision, or repeal of the foregoing. […]”).

[32] Freedom of Information Act, 5 U.S.C. § 552 (2010) (“(a) Each agency shall make available to the public information as follows: (1) Each agency shall separately state and currently publish in the Federal Register for the guidance of the public—(A) descriptions of its central and field organization and the established places at which, the employees (and in the case of a uniformed service, the members) from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions; (B) statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available; (C) rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations; (D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency; and (E) each amendment, revision, or repeal of the foregoing. […]”).

To assist agencies comply with this publication requirement, the Administrative Committee of the Federal Register promulgated a legislative rule clarifying the terms “general applicability and legal effect.” It defined such rules to be “any document issued under proper authority prescribing a penalty or course of conduct, conferring a right, privilege, authority, or immunity, or imposing an obligation, and relevant or applicable to the general public, members of a class, or persons in a locality, as distinguished from named individuals or organizations.” 1 C.F.R. § 1.1 (1988).

[33] 5 U.S.C. § 551(4) (2010) (Title 5—Chapter 5: Administrative Procedure) ("'Rule' means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing.").

[34] 5 U.S.C. § 551(6) (2010) (Title 5—Chapter 5: Administrative Procedure) ("'Order' means the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing."). "Rule making" is defined in 5 U.S.C. § 551(5) (2010) (Title 5—Chapter 5: Administrative Procedure) ("'Rule Making' means agency process for formulating, amending, or repealing a rule."). "Rule" is defined in 5 U.S.C. § 551(4) (2010) (Title 5—Chapter 5: Administrative Procedure) ("'Rule' means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing.").

[35] 5 U.S.C. § 551(4) (2010) (Title 5—Chapter 5: Administrative Procedure) ("'Rule' means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing.").

[36] 5 U.S.C. § 551(6) (2010) (Title 5—Chapter 5: Administrative Procedure) ("'Order' means the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing."). "Rule making" is defined in 5 U.S.C. § 551(5) (2010) (Title 5—Chapter 5: Administrative Procedure) ("'Rule Making' means agency process for formulating, amending, or repealing a rule."). "Rule" is defined in 5 U.S.C. § 551(4) (2010) (Title 5—Chapter 5: Administrative Procedure) ("'Rule' means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing.").

[37] The Administrative Procedure Act of 1946, 5 U.S.C. § 551(7) (2010) (Title 5—Chapter 5: Administrative Procedure) ("'Adjudication' means agency process for the formulation of an order."). "Order" is defined in 5 U.S.C. § 551(6) (2010) (Title 5—Chapter 5: Administrative Procedure) ("'Order' means the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing.").

[38] It also includes “licensing.” The Administrative Procedure Act of 1946, 5 U.S.C. § 551(6) (2010) (Title 5—Chapter 5: Administrative Procedure) ("'Order' means the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing."). "Rule making" is defined in 5 U.S.C. § 551(5) (2010) (Title 5—Chapter 5: Administrative Procedure) ("'Rule Making' means agency process for formulating, amending, or repealing a rule."). "Rule" is defined in 5 U.S.C. § 551(4) (2010) (Title 5—Chapter 5: Administrative Procedure) ("'Rule' means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing.").

[39] See Attorney General's Manual on the Administrative Procedure Act 14-15 (1947) (“More broadly, the entire Act is based upon a dichotomy between rule making and adjudication. Examination of the legislative history of the definitions and of the differences in the required procedures for rule making and for adjudication discloses highly practical concepts of rule making and adjudication. Rule making is agency action which regulates the future conduct of either groups of persons or a single person; it is essentially legislative in nature, not only because it operates in the future but also because it is primarily concerned with policy considerations. The object of the rule making proceeding is the implementation or prescription of law or policy for the future, rather than the evaluation of a respondent's past conduct. Typically, the issues relate not to the evidentiary facts, as to which the veracity and demeanor of witnesses would often be important, but rather to the policy-making conclusions to be drawn from the facts. Senate Hearings (1941) pp. 657, 1298, 1451. Conversely, adjudication is concerned with the determination of past and present rights and liabilities. Normally, there is involved a decision as to whether past conduct was unlawful, so that the proceeding is characterized by an accusatory flavor and may result in disciplinary action. Or, it may involve the determination of a person's right to benefits under existing law so that the issues relate to whether he is within the established category of persons entitled to such benefits. In such proceedings, the issues of fact are often sharply controverted. Sen. Rep. p. 39 (Sen. Doc. p. 225); 92 Cong. Rec. 5648 (Sen. Doc. p. 353).”).

[40] U.S. Const. art. I, § 9, cl. 3 (“No Bill of Attainder or ex post facto Law shall be passed.”); see also U.S. Const. art. I, § 10, cl. 1 (prohibiting state-level ex post facto legislation); see also Congressional Research Serv., The Constitution of the United States of America: Analysis and Interpretation, Article I, S. Doc. No. 108-17 (2002), available at https://intelligencelaw.com/files/pdf/law_library/crs/CRS_Article_I_2002.pdf (“Both federal and state governments are prohibited from enacting ex post facto laws,[40] and the Court applies the same analysis whether the law in question is a federal or a state enactment. When these prohibitions were adopted as part of the original Constitution, many persons understood the term ex post facto laws to ‘‘embrace all retrospective laws, or laws governing or controlling past transactions, whether . . . of a civil or a criminal nature.’’[40] ) (some internal footnotes omitted).

[41] See Congressional Research Serv., The Constitution of the United States of America: Analysis and Interpretation, Article I, S. Doc. No. 108-17 (2002), available at https://intelligencelaw.com/files/pdf/law_library/crs/CRS_Article_I_2002.pdf (“[...] in the early case of Calder v. Bull, [3 U.S. (3 Dall.) 386, 393 (1798).] the Supreme Court decided that the phrase [ex post facto laws], as used in the Constitution, was a term of art that applied only to penal and criminal statutes. But although it is inapplicable to retroactive legislation of any other kind, the constitutional prohibition may not be evaded by giving a civil form to a measure that is essentially criminal. [Burgess v. Salmon, 97 U.S. 381 (1878).] Every law that makes criminal an act which was innocent when done, or which inflicts a greater punishment than the law annexed to the crime when committed, is an ex post facto law within the prohibition of the Constitution. [Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798); Ex parte Garland, 71 U.S. (4 Wall.) 333, 377 (1867); Burgess v. Salmon, 97 U.S. 381, 384 (1878).]”) (some internal footnotes omitted).

[42] See Congressional Research Serv., General Management Laws: A Compendium, § I(B), RL30795 (MAY 19, 2004), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30795_5-19-2004.pdf (“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.”).

[43] See Congressional Research Serv., General Management Laws: A Compendium, § I(B), RL30795 (MAY 19, 2004), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30795_5-19-2004.pdf (“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.”).

[44] See 32 C.F.R. § 147.1 (“The following adjudicative guidelines are established for all United States Government civilian and military personnel, consultants, contractors, employees of contractors, licensees, certificate holders or grantees and their employees and other individuals who require access to classified information. They apply to persons being considered for initial or continued eligibility for access to classified information, to include sensitive compartmented information and special access programs and are to be used by government departments and agencies in all final clearance determinations.”); see also 63 Fed. Reg. 4572, 4573, Jan. 30, 1998 (adding Part 147 to Title 32 of the Code of Federal Regulations effective March 24, 1997).

[45] “Rulemaking” is defined in Section 551(5) of the APA. See 5 U.S.C. § 551(5) (2010) (Title 5—Chapter 5: Administrative Procedure) ("'Rule Making' means agency process for formulating, amending, or repealing a rule."). "Rule" is defined in 5 U.S.C. § 551(4) (2010) (Title 5—Chapter 5: Administrative Procedure) ("'Rule' means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing.").

[46] “Adjudication” is defined in Section 551(7) of the APA. See 5 U.S.C. § 551(7) (2010) (Title 5—Chapter 5: Administrative Procedure) ("'Adjudication' means agency process for the formulation of an order."). "Order" is defined in 5 U.S.C. § 551(6) (2010) (Title 5—Chapter 5: Administrative Procedure) ("'Order' means the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing.").

[47] See Attorney General's Manual on the Administrative Procedure Act 15 (1947) (“Not only were the draftsmen and proponents of the bill aware of this realistic distinction between rule making and adjudication, but they shaped the entire Act around it.”).

[48] Administrative Procedure Act of 1946, as amended, 5 U.S.C. § 551 (5) (2010); see also Black’s Law Dictionary 1332 (7th ed. 1999).

[49] The term “rule” also “includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing.” 5 U.S.C. § 551(4) (2010) (Title 5—Chapter 5: Administrative Procedure) ("'Rule' means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing.").

[50] The Department of Justice similarly misuses the term “order” to describe what would likely be classified as a “rule” under the Administrative Procedure Act. See 28 C.F.R. § 0.180 (“All documents relating to the organization of the Department or to the assignment, transfer, or delegation of authority, functions, or duties by the Attorney General or to general departmental policy shall be designated as orders and shall be issued only by the Attorney General in a separate, numbered series. Classified orders shall be identified as such, included within the numbered series, and limited to the distribution provided for in the order or determined by the Assistant Attorney General for Administration. All documents amending, modifying, or revoking such orders, in whole or in part, shall likewise be designated as orders within such numbered series, and no other designation of such documents shall be used.”).

Since the so-called “orders” described under 28 C.F.R. § 0.180 are “agency statement[s] of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements” of the DOJ, it is possible they would be more properly classified as “rules” rather than “orders.”

5 U.S.C. § 551(4) (2010) (Title 5—Chapter 5: Administrative Procedure) ("'Rule' means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency […]”).

[51] 28 C.F.R. § 0.180 (“All documents relating to the organization of the Department or to the assignment, transfer, or delegation of authority, functions, or duties by the Attorney General or to general departmental policy shall be designated as orders and shall be issued only by the Attorney General in a separate, numbered series. Classified orders shall be identified as such, included within the numbered series, and limited to the distribution provided for in the order or determined by the Assistant Attorney General for Administration. All documents amending, modifying, or revoking such orders, in whole or in part, shall likewise be designated as orders within such numbered series, and no other designation of such documents shall be used.”) (emphasis added); compare with 5 U.S.C. § 551(4) (2010) (Title 5—Chapter 5: Administrative Procedure) (“‘Rule’ means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency […]”).

[52] 28 C.F.R. § 0.180 (“All documents relating to the organization of the Department or to the assignment, transfer, or delegation of authority, functions, or duties by the Attorney General or to general departmental policy shall be designated as orders and shall be issued only by the Attorney General in a separate, numbered series. Classified orders shall be identified as such, included within the numbered series, and limited to the distribution provided for in the order or determined by the Assistant Attorney General for Administration. All documents amending, modifying, or revoking such orders, in whole or in part, shall likewise be designated as orders within such numbered series, and no other designation of such documents shall be used.”) (emphasis added); compare with 5 U.S.C. § 551(4) (2010) (Title 5—Chapter 5: Administrative Procedure) (“‘Rule’ means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency […]”).

[53] 5 U.S.C. § 551(4) (2010) (Title 5—Chapter 5: Administrative Procedure) ("'Rule' means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency […]”).

 


© 2012 David Alan Jordan. All rights reserved.