Intelligence Law School - Course 1: Lesson 5.2.2 Legislative Rules


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LESSON 5: ADMINISTRATIVE LAW


5.2 Agency Rules


5.2.2 Legislative Rules


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5.2.2 Legislative Rules

5.2.2.1 Legislative vs. Non-Legislative Rules

Okay, so now you know you know the basic definition of a “rule” under the APA, and you know we’re going to be focused mostly on the different types of “rules” out there cluttering the landscape of America’s intelligence bureaucracies.

 

Remember that, at the highest level of generality, there are only two fundamental types of rules generated by agencies:

 

Ø  Legislative Rules; and

Ø  Non-Legislative Rules.

 

Legislative rules have the full force and effect of law.

Non-legislative rules do not.

 

What does it mean to “have the full force and effect of law?”

Ø  Legal Effect: It means the rule has “legal effect.”[1]

o   Another way to put it, “[a] properly adopted [legislative] rule establishes a standard of conduct that has the force of law.”[2]

Ø  Binding on Others Outside the Agency: It means that the rule has the power to affect the substantive rights and obligations of persons and entities both inside and outside of the agency promulgating it.[3]

o   Compliance with its mandates is legally obligatory as a matter of law. 

Ø  Binding on the Agency: When an administrative rule has the force of law, it doesn’t just mean that the rule is binding on individuals outside the agency; it also means that the rule is binding on the agency itself.[4]

o   If an agency wants to violate one of its own legislative rules, it needs to formally change or repeal the rule through rulemaking before they can do it.

§  They must also follow all the statutory procedures required for issuance of new rules.

Ø  Rules Imposing Penalties Are Always Legislative: Another way you can tell if a rule has the force and effect of law is to look to see if there’s a penalty for non-compliance.

o   If a rule carries any sort of penalty for non-compliance, it has to be a legislative rule.[5]

o   It doesn’t matter if it’s an internal rule that applies only to agency personnel, if it carries a penalty then it has “legal effect.”[6]

o   In order to lawfully possess “legal effect” it must satisfy all the basic requirements for being a legislative rule.[7]

Ø  Judicial Tests: Yet another way to understand it is to look at how judges determine whether a rule has legal effect or not when trying to determine if it is a legislative or non-legislative rule.

o   In a case called Syncor International Corporation v. Shalala, the D.C. Circuit said that

§  “the crucial distinction between [a legislative rule] and [a non-legislative rule] is that a [legislative rule] modifies or adds to a legal norm based on the agency's own authority. […]

§  [and] [t]hat authority flows from a congressional delegation to promulgate [legislative rules], to engage in supplementary lawmaking.

§  [The Court also said that] it is because the agency is engaged in lawmaking that the APA requires it to comply with notice and comment” [in section 553, which we’ll talk about in a minute].[8]

 

o   Another standard for distinguishing a legislative rule from a non-legislative rule was offered by Judge Williams of the D.C. Circuit in American Mining Congress v. Mine Safety & Health Administration.[9]

§  According to this standard, whether a rule has “legal effect” “is best ascertained” by asking three questions:

·         “(1) [First] whether in the absence of the rule there would not be an adequate legislative basis for enforcement action or other agency action to confer benefits or ensure the performance of duties,

·         (2) [Second] whether the agency has published the rule in the Code of Federal Regulations,

·         (3) [Third] whether the agency has explicitly invoked its general legislative authority, or

·         (4) [Fourth] whether the rule effectively amends a prior legislative rule.

·         [He said] [i]f the answer to any of these questions is affirmative, we have a legislative, not [a non-legislative] rule.”[10]

 

5.2.2.2 “Legislative Rule” Nomenclature and Publication

Ø  Alternative Names for Legislative Rules: “Substantive Rules” and “Regulations”: Remember, legislative rules are also called “substantive rules.”

o   They’re called substantive because they have legal substance—that is, they have the force and effect of law.

o   Black’s Law Dictionary defines a “legislative rule” as: “An administrative rule created by an agency’s exercise of delegated quasi-legislative authority. A legislative rule has the force of law. – Also termed substantive rule.”[11]

o   The dictionary also defines substantive rule as a rule issued by an agency having legal force.[12]

o   In addition, legislative rules are also called “regulations.”

o   You’ll sometimes hear non-lawyers talking about agencies and every rule they see that’s published by any agency they call a “regulation.”

§  This is incorrect usage of the term.

§  “Regulation” means a legislative rule.[13]

 

o   The term “substantive rule” is used interchangeably with “legislative rule” in common parlance.

§  I almost always use the word “legislative rule” instead of “substantive rule” throughout this course because I want to be sure to highlight the critical role of the Legislative Branch—Congress—in determining the legal force and effect of any administrative rule promulgated by an agency or the President.

§  Agencies don’t have any independent legal authority derived from the Constitution.

§  Whatever authority or powers an agency has, it got from Congress.

§  All of an agency’s powers and duties under law have their origin in enabling statutes enacted by Congress that create the agency and define its responsibilities.

§  Still, when I occasionally use the adjective “substantive” to describe a rule, I’m definitely always talking about a legislative rule with the force and effect of law.

§  Also, whenever I use the term “regulation” I’m also talking about a legislative rule.

 

Ø  Constitutionality of Delegating Legislative Power to Agencies: The Constitution of the United States vests the legislative power of the federal government in Congress alone, so how can an agency issue a legislative rule with the full force and effect of law?

o   The answer is, by getting a delegation of lawmaking power from Congress.

o   Agencies have no independent lawmaking authority, but they can have the power to promulgate legislative rules that have the force and effect of law if Congress has explicitly delegated some of its lawmaking power to the agency in an enabling statute.

o   Congress is the only branch of government constitutionally vested with lawmaking power, so any lawmaking performed by an agency or the President must be supported by a statutory delegation of lawmaking power from Congress in order to have the force and effect of law.

§  Things get a bit nuanced in the area of Presidential lawmaking, but I’ll discuss that in the next section after we finish talking about agency rules.

§  There is also something called the “Nondelegation Doctrine” that’s relevant to the delegation question, but it is almost never relevant in the intelligence law context so there’s no need for me to bore you with it here. 

 

Ø  Publication of Generally Applicable Regulations in the Code of Federal Regulations (CFR): Generally applicable regulations are legislative rules that apply outside the agency issuing them, often affecting the rights and obligations of individuals or entities outside the agency.

o   Since regulations affect the substantive legal rights of parties outside the government, they must be promulgated in compliance with strict procedures to safeguard against arbitrary deprivations or abuse of power.

o   Section 553 of the APA provides the default mandatory procedures for informal rulemaking that apply to generally applicable regulations in the absence of a specific statutory exemption or alternative procedures imposed by Congress in an enabling statute.

o   Regulations that are generally applicable are also published in the Federal Register and codified in the Code of Federal Regulations (CFR).[14]

§  The C.F.R. is a “complete codification of the documents of each agency of the Government having general applicability and legal effect, issued or promulgated by the agency […].”[15]

§  Rules are also codified in the C.F.R. if they’re relied on by the agency as authority for its activities or to carry out its duties.[16]

§  The C.F.R. is like the administrative law version of the United States Code in statutory law.

§  It’s is a topical codification of the most important legislative rules in force, just like the U.S. Code is a topical codification of the most important statutes still in force.

 

5.2.2.3 The Importance of Compliance with Mandatory Procedures

Legislative rules have the full force and effect of law only if they satisfy two mandatory requirements:

Ø  1. Statutory Delegation: (1) The rules must have been promulgated pursuant to a statutory delegation of lawmaking power to the agency from Congress; and

Ø  2. Mandatory Procedures: (2) They must have been promulgated in compliance with mandatory statutory procedures.

o   This second requirement of adherence to mandatory statutory procedures is important.

§  You might be thinking, “So what’s the big deal if an agency decides to promulgate a rule without going through all the hassle of following some stupid procedure required by the Administrative Procedure Act or some other statute?”

§  Well, it’s a big deal because the APA’s rulemaking procedures are mandatory unless there is a specific statutory exemption that applies.

§  Mandatory statutory obligations must be followed in order for a governmental action to be valid. 

§  Since the APA’s rulemaking procedures are mandatory for legislative rulemaking by agencies by default, any legislative rulemaking by an agency not carried out in compliance with the APA’s procedures will be void as a matter of law.

§  Any rule produced will be without legal force from its inception.

§  As a practical matter, this means that any penalties imposed on people who violate the rule will likewise lack legal effect and can be challenged in court.

 

5.2.2.4 APA Section 553 (5 U.S.C. § 553): Default Mandatory Procedures for Informal Rulemaking

Ø  Informal Rulemaking: In most circumstances, the default mandatory procedures that apply to legislative rulemaking are found in the APA.[17]

o   Specifically, they are found in section 553 of the APA, which is codified in Title 5 of the U.S. Code at Section 553.

o   Section 553 sets out the standard procedures for what’s known as “informal rulemaking.”

o   It’s also called “notice-and-comment” rulemaking, because that’s what the APA requires—notice and comment.

o   Section 553 sets rules regarding how the public is to be informed when an agency is about to issue a legislative rule, and the public also needs to be given an opportunity to comment before the agency can promulgate a binding rule.[18]

o   This requires:

§  1) Notice of Proposed Rulemaking: Publication of a general notice of proposed rulemaking in the Federal Register;[19]

§  2) Opportunity to Participate: It requires that interested persons be given an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation;[20]

§  3) Concise General Statement of Basis and Purpose: After consideration of the relevant matter presented,[21] the agency must incorporate in the rules adopted a concise general statement[22] of their basis and purpose;[23]

§  4) Publication 30 Days Before Effective Date: And finally, the rules must be published in the Federal Register not less than 30 days before their effective date.[24]

·         Exception to 30-Day Waiting Period: This 30-day waiting period before effectiveness doesn’t apply if the rule is a:

o   1. Substantive rule which grants or recognizes an exemption or relieves a restriction;

o   2. Or if it is an interpretative rule or statement of policy; or

o   3. If the agency has good cause[25] for not adhering to the 30-day delay that it publishes along with the rule in the Federal Register.[26]

 

Ø  Formal Rulemaking: In addition to the usual informal rulemaking procedures that apply to legislative rulemaking by default in most circumstances, there is also a more exacting set of statutory procedures under the APA that apply to another kind of legislative rulemaking called “formal rulemaking.”[27]

o   Formal rulemaking is very rare even outside the intelligence law context.

o   I can’t think of a single instance where it is required to be used by an intelligence agency.

o   Formal rulemaking is used only when Congress has explicitly mandated that an agency has to promulgate rules with a hearing “on the record.”

o   Those words “on the record” are critical. If it doesn’t call for a hearing on the record, then only informal rulemaking rules apply. When rules are required by statute to be made “on the record” after opportunity for an agency hearing, formal rulemaking procedures kick in, and sections 556 and 557 of the APA apply instead of the public comment provisions used for informal rulemaking under section 553(c).[28]

o   This leads to absurdly long trial-like hearings that can take many years to complete.

o   Since it doesn’t come up in the intelligence context, I won’t bore you with more details about formal rulemaking.

 

Ø  Hybrid Rulemaking: In addition to informal rulemaking and formal rulemaking, there is also a third category of rulemaking known as “hybrid rulemaking.”

o   The term “hybrid rulemaking” just refers to when Congress decides to prescribe special rules that are usually a mix of informal and formal rulemaking procedures.[29]

o   When hybrid rulemaking is called for, the agency must follow all of the required procedures Congress lays out in the relevant enabling statute in order to promulgate a valid legislative rule.

o   If the agency fails to do so, then any rules it issues will be void from their inception, and any penalties that are assessed under their provisions likewise will be null and void.

 

5.2.2.5 Two Categories of Rules Completely Exempt from Section 553 Rulemaking Procedures

Ø  Complete Exemptions from Section 553’s Mandatory Informal Rulemaking Procedures Generally: So, Section 553’s informal rulemaking procedures are the default for legislative rulemaking by agencies, but there are 2 broad exemptions to Section 553 that apply to a lot of rules promulgated by agencies in the intelligence law context. 

o   Specifically, Section 553 doesn’t apply to rules concerning:

§  (1) a military or foreign affairs function of the United States; or

§  (2) matters relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.

o   I’ll discuss these two categories individually.

Ø  Complete Exemption # 1: Military and Foreign Affairs Exception: The first exemption is really the major one for purposes of U.S. intelligence law.  

o   Section 553 exempts rulemaking associated with a “military[30] or foreign affairs[31] function” from any of the procedural requirements contained in that section.[32]

o   This “military or foreign affairs function” exemption doesn’t apply to all rulemaking conducted in the Intelligence Community, but the agencies tend to interpret the terms “military or foreign affairs function” very broadly so they apply to as much of what they do as possible.

o   Intelligence agencies and DoD like to use this “military or foreign affairs” exception to avoid the hassle of public notice-and-comment rulemaking procedures.

o   DoD applies the exemption to pretty much everything.

o   Some scholars say this is an abuse of the exemption, and this challenge does seem to be supported by the legislative history.[33]

o   Still, since it’s almost impossible for a plaintiff to gain standing to challenge the practice in court the agencies will probably always continue to get away with it.

o   Just know that while legislative rulemaking ordinarily must comply with the mandatory default procedures in section 553 of the APA, any rulemaking arguably related to a military or foreign affairs function might be exempt from 553’s requirements altogether.

 

o   This doesn’t mean that agencies involved in a military or foreign affairs function are entirely exempt from all of the APA’s requirements—just the sections of the APA that have specific exemptions like the ones in 553’s rulemaking procedures.

§  Intelligence agencies and the Department of Defense are still “agencies” as defined under the APA,[34] and they are still governed by any of the APA’s requirements that don’t include an explicit exemption written in the text of the statute or in some other enabling statute.

 

o   This exemption also doesn’t mean that it’s a lawless free-for-all for any agency engaged in legislative rulemaking related to military or foreign affairs.

§  It just means that they are free to promulgate rules according to other procedures set out in their enabling statutes, or, in the absence of specific statutory procedures imposed by Congress, according to the agency’s own internal procedures.[35]

Ø  Complete Exemption # 2: Agency Management or Personnel, Public Property, Loans, Grants, Benefits, or Contracts

o   There is also a second category of rulemaking that is  exempt from 553’s requirements for legislative rulemaking.

o   It includes:

§  Rules regarding matters relating to agency management or personnel; and

§  Rules related to public property,[36] loans,[37] grants,[38] benefits,[39] or contracts.[40] 

 

5.2.2.6 Publication of Legislative Rules in the Federal Register and Code of Federal Regulations

Regardless of 553’s exemptions, Section 552 requires that legislative rules almost always must be published in the Federal Register.[41]

This publication requirement for legislative rules has been around as long as the Federal Register itself.

It was enacted as part of the original Federal Register Act of 1935, which required publication of all rules of “general application and legal effect”[42] in the newly created Federal Register.[43]

Ø  The Federal Register: The Federal Register is a daily publication of various types of presidential and administrative documents.[44]

Ø  APA Rulemaking’s 30-Day Delay Between Publication and Entry into Force of Legislative Rules: The Federal Register Act of 1935’s publication requirement for legislative rules was enhanced under Section 553 of the Administrative Procedure Act of 1946.

o   The APA’s rulemaking provisions in Section 553 require a special 30-day delay between final publication and entry into force of a newly promulgated legislative rule.[45]

o   So newly promulgated regulations affecting substantive rights outside the agency cannot enter into force until at least 1 month after they were first published in the Federal Register.

o   This is to give affected parties time to learn of the new rules and adjust their behavior so they’re in compliance with its requirements by the time it takes effect and begins to modify their legal rights or obligations as a matter of law.

Ø  Effect of Failure to Publish Rules: Nobody reads the Federal Register every day, so why should you care about this publication requirement?

o   The simple answer is, it’s a mandatory statutory procedure required for promulgating a legislative rule with the force and effect of law.[46]

o   Remember that failure to comply with any one of the mandatory statutory procedures required for promulgating a legislative rule results in that rule never gaining the full force of law.

o   So, since Section 552’s publication requirement is mandatory, failure to publish a legislative rule in the Federal Register will mean that the regulation doesn’t come into legal effect.[47]

§  It’s just a sheet of paper with typing on it.

o   A proposed rule does not gain legal effect until all mandatory statutory procedures are satisfied.[48]

o   Any sanctions or adverse consequences imposed by such a rule will likewise lack legal effect as well.[49]

Ø  The Code of Federal Regulations: After substantive rules are published in the Federal Register, they may be codified in the Code of Federal Regulations, or “C.F.R.,” if they are generally applicable.[50]

o   The C.F.R. is a “complete codification of the documents of each agency of the Government having general applicability and legal effect, issued or promulgated by the agency by publication in the Federal Register or by filing with the Administrative Committee, and are relied upon by the agency as authority for, or are […] used by it in the discharge of, its activities or functions.”[51]

o   As I’ve said, the C.F.R. is like the administrative law version of the United States Code in statutory law.

o   It’s a topical codification of the most important legislative rules in force, just like the U.S. Code is a topical codification of the most important statutes still in force.

Ø  U.S. Intelligence Law in the CFR: There aren’t very many legislative rules governing intelligence agencies published in the CFR for a variety of reasons.

o   For one thing, intelligence agencies don’t often promulgate legislative rules of general applicability that affect the rights or obligations of private individuals in society—at least not directly.

o   The kinds of legislative rules that do end up published in the C.F.R. deal mostly with things that really do affect people outside their agency—things like FOIA fees and procedures for submitting Privacy Act requests—things like that.

Ø  CIA Example: 32 C.F.R. Parts 1900-1910: So what kind of legislative rules are published in the C.F.R. for an agency like the CIA?

o   Yes, believe it or not, there are publicly available legislative rules promulgated by the CIA Director that are published in the CFR.

o   Title 32 of the CFR contains all the regulations related to CIA.

o   They’re codified from Part 1900 through 1910 of Title 32.

o   Check it out.

Ø  Example of CIA Regulations in the C.F.R.: The Aldrich Ames Solution!: You’ll see that some past CIA Director felt the need to promulgate the rule codified at 32 C.F.R. Section 1903.13.

o   It outlaws being drunk at CIA Headquarters.

o   I guess Aldrich Ames ruined it for everyone.

 

Ø  There’s a ton of good stuff like that in the CFR.

 

Footnotes

[1] See 1 C.F.R. § 1.1 (1988) (defining rules of “general applicability and legal effect" to include “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.”). Another standard for determining if a rule has “legal effect” was offered by Judge Williams of the D.C. Circuit in American Mining Congress v. Mine Safety & Health Admin., 995 F.2d 1106 (D.C. Cir. 1993). According to this standard, whether a purported interpretive rule has “legal effect” “is best ascertained by asking (1) whether in the absence of the rule there would not be an adequate legislative basis for enforcement action or other agency action to confer benefits or ensure the performance of duties, (2) whether the agency has published the rule in the Code of Federal Regulations, (3) whether the agency has explicitly invoked its general legislative authority, or (4) whether the rule effectively amends a prior legislative rule. If the answer to any of these questions is affirmative, we have a legislative, not an interpretive rule.”). Id. at 1111-12. Another test for determining whether a rule has “the force of law” is to consider whether it has a substantive impact on non-agency parties, especially in any judicial or administrative proceeding. See generally Peter L. Strauss, Todd Rakoff, Roy A. Schotland, & Cynthia R. Farina, Gellhorn and Byse’s Administrative Law: Cases and Comments 392, at note 5 (9th Ed. 1995).

[2] 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).

[3] One test for determining whether a rule has “the force of law” is to consider whether it has a substantive impact on non-agency parties, especially in any judicial or administrative proceeding. See generally Peter L. Strauss, Todd Rakoff, Roy A. Schotland, & Cynthia R. Farina, Gellhorn and Byse’s Administrative Law: Cases and Comments 392, at note 5 (9th Ed. 1995).

[4] See Sameena Inc. v. U.S. Air Force, 147 F.3d 1148, 1153 (9th Cir. 1998) ("The Supreme Court has long recognized that a federal agency is obliged to abide by the regulations it promulgates. See Vitarelli v. Seaton, 359 U.S. 535, 545, 3 L. Ed. 2d 1012, 79 S. Ct. 968 (1959); Service v. Dulles, 354 U.S. 363, 372, 1 L. Ed. 2d 1403, 77 S. Ct. 1152 (1957); Accardi v. Shaughnessy, 347 U.S. 260, 267, 98 L. Ed. 681, 74 S. Ct. 499 (1954). An agency's failure to follow its own regulations "tends to cause unjust discrimination and deny adequate notice" and consequently may result in a violation of an individual's constitutional right to due process.  NLRB v. Welcome-American Fertilizer Co., 443 F.2d 19, 20 (9th Cir. 1971); see also United States v. Newell, 578 F.2d 827, 834 (9th Cir. 1978). Where a prescribed procedure is intended to protect the interests of a party before the agency, "even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed." Vitarelli, 359 U.S. at 547 (Frankfurter, J., concurring); see also Note, Violations by Agencies of Their Own Regulations, 87 Harv. L. Rev. 629, 630 (1974) (observing that agency violations of regulations promulgated to provide parties with procedural safeguards generally have been invalidated by courts).”).

[5] For example, the Federal Register Act of 1935 states that—for purposes of determining which Presidential or agency documents meet its publication requirements—any Presidential or agency rule that carries a penalty for noncompliance shall be understood to have “general applicability and legal effect.” Federal Register Act of 1935, 44 U.S.C. § 1505(a) (2010) ("[...] every document or order which prescribes a penalty has general applicability and legal effect."); see also 1 C.F.R. § 1.1 (1988) (defining rules of “general applicability and legal effect" to include “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.”) (emphasis added).

[6] Every rule that imposes a penalty is automatically considered to be a legislative rule with full legal effect. 44 U.S.C. § 1505(a) (2010) ("[...] every document or order which prescribes a penalty has general applicability and legal effect.").

[7] No agency may impose a sanction unless the power to do so is explicitly within their jurisdiction and authorized by an enabling statute enacted by Congress. 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.”); see also generally 1 C.F.R. § 1.1 (1988) (defining rules of “general applicability and legal effect" to include “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.”).

[8] 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.”).

[9] American Mining Congress v. Mine Safety & Health Admin., 995 F.2d 1106 (D.C. Cir. 1993).

[10] American Mining Congress v. Mine Safety & Health Admin., 995 F.2d 1106, 1111-12 (D.C. Cir. 1993) (stating that whether a rule has legal effect “is best ascertained by asking (1) whether in the absence of the rule there would not be an adequate legislative basis for enforcement action or other agency action to confer benefits or ensure the performance of duties, (2) whether the agency has published the rule in the Code of Federal Regulations, (3) whether the agency has explicitly invoked its general legislative authority, or (4) whether the rule effectively amends a prior legislative rule. If the answer to any of these questions is affirmative, we have a legislative, not an interpretive rule.”).

[11] Black’s Law Dictionary 911 (7th ed. 1999).

[12] Black’s Law Dictionary 1289 (7th ed. 1999); see also 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, as, for example, the proxy rules issued by the Securities and Exchange Commission pursuant to section 14 of the Securities Exchange Act of 1934 (15 U.S.C. 78 n). Such rules have the force and effect of law.”).

[13] To give you an example of how inconsistent the nomenclature is in administrative law take a look at 5 U.S.C. Section 301. It is a general grant of non-legislative rulemaking authority from Congress to all executive department heads to promulgate “regulations.” It was enacted back in 1789, before the work “regulation” came to signify only a legislative rule. A non-legislative “regulation” is an oxymoron today. The fact that there’s a statute still on the books that authorizes agencies to promulgate non-legislative “regulations” should tell you a little something about how lazy the government has been about keeping their terminology consistent. The confusion began with the very founding of the Republic. See Housekeeping Act of 1789, as amended, 5 U.S.C. § 301 (2010) ("Departmental regulations: The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. This section does not authorize withholding information from the public or limiting the availability of records to the public."). The Housekeeping Act was passed in 1789, later codified as section 161 of the Revised States in 1875, and then finally amended again in 1958.

[14] See Congressional Research Serv., General Management Laws: A Compendium, § I(A), RL30795 (MAY 19, 2004), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30795_5-19-2004.pdf (“The Administrative Committee, with the approval of the President, also supervises and manages the production of the Code of Federal Regulations.  The Code is a “complete codification of the documents of each agency of the Government having general applicability and legal effect, issued or promulgated by the agency by publication in the Federal Register or by filing with the Administrative Committee, and are relied upon by the agency as authority for, or are invoked or used by it in the discharge of, its activities or functions” (44 U.S.C. § 1510(a)).  The Office of the Federal Register prepares and publishes the codifications appearing in the Code.  The Federal Register, the Code of Federal Regulations, and other series of publications produced pursuant to the general authority of the Federal Register Act are available to the public through sales, OFR and other websites ([http://www.archives.gov/federal_register/index.htm]), and distribution to federal depository libraries.”).

[15] 44 U.S.C. § 1510(a) (defining the Code of Federal Regulations as a “complete codification of the documents of each agency of the Government having general applicability and legal effect, issued or promulgated by the agency by publication in the Federal Register or by filing with the Administrative Committee, and are relied upon by the agency as authority for, or are invoked or used by it in the discharge of, its activities or functions”).

[16] 44 U.S.C. § 1510(a) (defining the Code of Federal Regulations as a “complete codification of the documents of each agency of the Government having general applicability and legal effect, issued or promulgated by the agency by publication in the Federal Register or by filing with the Administrative Committee, and are relied upon by the agency as authority for, or are invoked or used by it in the discharge of, its activities or functions”).

[17] See Attorney General's Manual on the Administrative Procedure Act 26 (1947) (“In general, the purpose of section 4 is to guarantee to the public an opportunity to participate in the rule making process. With stated exceptions, each agency will be required under this section to give public notice of substantive rules which it proposes to adopt, and to grant interested persons an opportunity to present their views to it. Where rules are required by statute to be made on the record after opportunity for an agency hearing, the provisions of sections 7 and 8 as to hearing and decision will apply in place of the less formal procedures contemplated by section 4 (b). With certain exceptions, no substantive rule may be made effective until at least thirty days after its publication in the Federal Register. Section 4 also grants to interested persons the right to petition an agency for the issuance, amendment or repeal of a rule.”).

[18] See Attorney General's Manual on the Administrative Procedure Act (1947) 30 (“Informal rule making. In every case of proposed informal rule making subject to the notice requirements of section 4 (a), section 4 (b) provides that "the agency shall afford interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity to present the same orally in any manner." The quoted language confers discretion upon the agency, except where statutes require "formal" rule making subject to sections 7 and 8, to designate in each case the procedure for public participation in rule making. Such informal rule making procedure may take a variety of forms: informal hearings (with or without a stenographic transcript), conferences, consultation with industry committees, submission of written views, or any combination of these. These informal procedures have already been extensively employed by Federal agencies. Final Report, pp. 103-105. In each case, the selection of the procedure to be followed will depend largely upon the nature of the rules involved. The objective should be to assure informed administrative action and adequate protection to private interests.”).

[19] 5 U.S.C. § 553(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.”).

[20] 5 U.S.C. § 553(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. […]”).

[21] See Attorney General's Manual on the Administrative Procedure Act (1947) 31-32 (“Each agency is affirmatively required to consider "all relevant matter presented" in the proceeding; it is recommended that all rules issued after such informal proceedings be accompanied by an express recital that such material has been considered. It is entirely clear, however, that section 4 (b) does not require the formulation of rules upon the exclusive basis of any "record" made in informal rule making proceedings. Senate Hearings (1941) p. 444. Accordingly, except in formal rule making governed by sections 7 and 8, an agency is free to formulate rules upon the basis of materials in its files and the knowledge and experience of the agency, in addition to the materials adduced in public rule making proceedings.”).

[22] See Attorney General's Manual on the Administrative Procedure Act (1947) 32 (“Section 4 (b) provides that upon the completion of public rule making proceedings "after consideration of all relevant matter presented, the agency shall incorporate in any rules adopted a concise general statement of their basis and purpose". The required statement will be important in that the courts and the public may be expected to use such statements in the interpretation of the agency's rules. The statement is to be "concise" and "general". Except as required by statutes providing for "formal" rule making procedure, findings of fact and conclusions of law are not necessary. Nor is there required an elaborate analysis of the rules or of the considerations upon which the rules were issued. Rather, the statement is intended to advise the public of the general basis and purpose of the rules.”).

[23] 5 U.S.C. § 553(c) (“[…] After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose.

[24] Section 553 of the Administrative Procedure Act sets a 30-day delay for legislative rules so they do not take effect until 30 days after they have satisfied the mandatory requirement that they be published in the Federal Register. Legislative rules cannot enter into force less than 30 days after they are promulgated in order to give affected parties time to learn of the rule and adjust their behavior accordingly to be in compliance when the regulation begins to modify their legal rights or obligations. See 5 U.S.C. § 553(d) (2010) ("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.").

[25] See Attorney General's Manual on the Administrative Procedure Act 30-31 (1947) (“Omission of notice and public procedure for good cause. The last sentence of section 4 (a) authorizes any agency to omit the notice required by that subsection (and the procedure specified by section 4 (b)) "in any situation in which the agency for good cause finds ... that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest". It should be noted that the reasons for which an agency may dispense with notice under section 4 (a) are written in the alternative so that if it is "impracticable" or "unnecessary" or "contrary to the public interest" the agency may dispense with notice. Should this be done, the agency must incorporate in the rule issued its finding of "good cause" and "a brief statement of the reasons therefor". In general, it may be said that a situation is "impracticable" when an agency finds that due and timely execution of its functions would be impeded by the notice otherwise required in section 4 (a). For example, the Civil Aeronautics Board may learn, from an accident investigation, that certain rules as to air safety should be issued or amended without delay; with the safety of the traveling public at stake, the Board could find that notice [31] and public rule making procedures would be "impracticable", and issue its rules immediately. "Unnecessary" refers to the issuance of a minor rule or amendment in which the public is not particularly interested. Senate Hearings (1941) p. 828. "Public interest" connotes a situation in which the interest of the public would be defeated by any requirement of advance notice. For example, an agency may contemplate the issuance of financial controls under such circumstances that advance notice of such rules would tend to defeat their purpose; in such circumstances, the "public interest" might well justify the omission of notice and public rule making proceedings. Senate Hearings (1941) p. 812.”).

[26] 5 U.S.C. § 553(d) (“The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except--v(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.”).

[27] 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.”).

[28] “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.").

[29]  A good example of an enabling statute requiring hybrid rulemaking is the Magnuson-Moss Act. It’s also known as the Federal Trade Commission Improvement Act of 1975, 15 U.S.C. § 57a. It prescribes a mix of procedures the FTC must use whenever promulgating trade regulations. They offer more procedural safeguards than basic informal rulemaking, but not as many as formal rulemaking. See William F. Fox, Understanding Administrative Law §7.04, pg. 169 (5th Ed. 2008).

[30] See Attorney General's Manual on the Administrative Procedure Act 26 (1947) (“The exemption for military and naval functions is not limited to activities of the War and Navy Departments but covers all military and naval functions exercised by any agency. Thus, the exemption applies to the defense functions of the Coast Guard and to the function of the Federal Power Commission under section 202 (c) of the Federal Power Act (16 U.S.C. 824a (c)). Sen. Rep. p. 39 (Sen. Doc. p. 225); Senate Hearings (1941) p. 502.”).

[31] See Attorney General's Manual on the Administrative Procedure Act 26-27 (1947) (“As to the meaning of "foreign affairs function", both the Senate and House reports state: "The phrase 'foreign affairs functions,' used here and in some other provisions of the bill, is not to be loosely interpreted to mean any function extending beyond the borders of the United States but only those 'affairs' which so affect relations with other governments that, for example, public rule making provisions would clearly provoke definitely undesirable international consequences." Sen. Rep. p. 13; H.R. Rep. p. 23 (Sen. Doc. pp. 199, 257). See also Representative Walter's statement to the House, 92 Cong. Rec. 5650 (Sen. Doc. p. 358). It is equally clear that the exemption is not limited to strictly diplomatic functions, because the phrase "diplomatic function" was employed in the January 6, 1945 draft of S. 7 (Senate Comparative Print of June 1945, p. 6; Sen. Doc. p.157) and was discarded in favor of the broader and more generic phrase "foreign affairs function". In the light of this legislative history, it would seem clear that the exception must be construed as applicable to most functions of the State Department and to the foreign affairs functions of any other agency.”).

[32] 5 U.S.C. § 553(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.”).

[33] See generally Attorney General's Manual on the Administrative Procedure Act 26-27 (1947) (“As to the meaning of "foreign affairs function", both the Senate and House reports state: "The phrase 'foreign affairs functions,' used here and in some other provisions of the bill, is not to be loosely interpreted to mean any function extending beyond the borders of the United States but only those 'affairs' which so affect relations with other governments that, for example, public rule making provisions would clearly provoke definitely undesirable international consequences." Sen. Rep. p. 13; H.R. Rep. p. 23 (Sen. Doc. pp. 199, 257). See also Representative Walter's statement to the House, 92 Cong. Rec. 5650 (Sen. Doc. p. 358). It is equally clear that the exemption is not limited to strictly diplomatic functions, because the phrase "diplomatic function" was employed in the January 6, 1945 draft of S. 7 (Senate Comparative Print of June 1945, p. 6; Sen. Doc. p.157) and was discarded in favor of the broader and more generic phrase "foreign affairs function". In the light of this legislative history, it would seem clear that the exception must be construed as applicable to most functions of the State Department and to the foreign affairs functions of any other agency.”).

[34] See Administrative Procedure Act of 1946, 5 U.S.C. § 551(1) (2010) (Title 5—Chapter 5: Administrative Procedure) (“‘Agency’ means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include—(A) the Congress; (B) the courts of the United States; (C) the governments of the territories or possessions of the United States; (D) the government of the District of Columbia;   or except as to the requirements of section 552 of this title [5 U.S.C. § 552]— (E) agencies composed of representatives of the parties or of representatives of organizations of the parties to the disputes determined by them; (F) courts martial and military commissions; (G) military authority exercised in the field in time of war or in occupied territory; or (H) functions conferred by sections 1738, 1739, 1743, and 1744 of title 12; chapter 2 of title 41 [41 U.S.C. §§ 101 et seq.]; subchapter II of chapter 471 of title 49 [49 U.S.C. §§ 47151 et seq.]; or sections 1884, 1891-1902, and former section 1641(b)(2), of title 50, appendix.”).

[35] When Section 553’s exemptions apply the agency must still follow any mandatory statutory procedures set by Congress. These would be found in the relevant enabling statute granting the agency legal authority to promulgate the rules in question. There are some default rules that apply in most circumstances, but Congress can set any procedures it wants provided the very basic tenets of due process are observed. This is a very light burden in the case of legislative acts like rulemaking.

[36] See Attorney General's Manual on the Administrative Procedure Act 27 (1947) (“Public Property. This embraces rules issued by any agency with respect to real or personal property owned by the United States or by any agency of the United States. Thus, the making of rules relating to the public domain, i.e., the sale or lease of public lands or of mineral, timber or grazing rights in such lands, is exempt from the requirements of section 4. The exemption extends, for example, to rules issued by the Tennessee Valley Authority in relation to the management of its properties, and by the Maritime Commission with respect to ships owned by the United States. The term "public property" includes property held by the United States in trust or as guardian; e.g., Indian property. H.R. Rep. p. 23 (Sen. Doc. p. 257).”).

[37] See Attorney General's Manual on the Administrative Procedure Act 27 (1947) (“Loans. This exempts rules issued with respect to loans by such agencies as the Reconstruction Finance Corporation, the Commodity Credit Corporation, and the Farm Credit Administration. It also exempts rules relating to guarantees of loans, such as are made by the Federal Housing Authority and the Veterans Administration, since they are matters relating to public loans.”).

[38] See Attorney General's Manual on the Administrative Procedure Act 27 (1947) (“Grants. Rule making with respect to subsidy programs is exempted from section 4. "Grants" also include grant-in-aid programs under which the Federal Government makes payments to state and local governments with respect to highways, airports, [28] unemployment compensation, etc.”).

[39] See Attorney General's Manual on the Administrative Procedure Act 27 (1947) (“Benefits. This refers to such programs as veterans' pensions and old-age insurance payments.”).

[40] See Attorney General's Manual on the Administrative Procedure Act 27 (1947) (“Contracts. All rules relating to public contracts are exempt from section 4. The exemption extends to wage determinations made by the Labor Department under the Davis Bacon Act (40 U.S.C. 276a et seq.) and the Walsh Healey Act (41 U.S.C. 35-45), as conditions to construction and procurement contracts entered into by the Federal Government. See Perkins v. Lukens Steel Co., 310 U. S. 113 (1940).”).

[41] 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.").

[42] See 1 C.F.R. § 1.1 (1988) (defining rules of “general applicability and legal effect" to include “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.”).

[43] 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.").

[44] See also 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.").

[45] 5 U.S.C. § 553(d) (2010) ("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.").

[46] The Freedom of Information Act makes its publication requirement mandatory for both the issuance of a valid legislative rule and the imposition of any sanctions. 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. […]”).

[47] See 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.”) (emphasis added); see also 5 U.S.C. § 552(a)(1) (2010) (“[…] Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published. […].”).

[48] No agency may issue a legislative rule or order with the force and effect of law unless the power to do so is explicitly within their jurisdiction and is authorized by an enabling statute enacted by Congress. 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.”) (emphasis added).

[49] No agency may impose a sanction unless the power to do so is explicitly within their jurisdiction and authorized by an enabling statute enacted by Congress. 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.”).

[50] 44 U.S.C. § 1510 (a) and (b) (2010) ("Code of Federal Regulations: (a) The Administrative Committee of the Federal Register, with the approval of the President, may require, from time to time as it considers necessary, the preparation and publication in special or supplemental editions of the Federal Register of complete codifications of the documents of each agency of the Government having general applicability and legal effect, issued or promulgated by the agency by publication in the Federal Register or by filing with the Administrative Committee, and are relied upon by the agency as authority for, or are invoked or used by it in the discharge of, its activities or functions, and are in effect as to facts arising on or after dates specified by the Administrative Committee. (b) A codification published under subsection (a) of this section shall be printed and bound in permanent form and shall be designated as the 'Code of Federal Regulations.' [...]"); see also Congressional Research Serv., General Management Laws: A Compendium, § I(A), RL30795 (MAY 19, 2004), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30795_5-19-2004.pdf (“The Administrative Committee, with the approval of the President, also supervises and manages the production of the Code of Federal Regulations.  The Code is a “complete codification of the documents of each agency of the Government having general applicability and legal effect, issued or promulgated by the agency by publication in the Federal Register or by filing with the Administrative Committee, and are relied upon by the agency as authority for, or are invoked or used by it in the discharge of, its activities or functions” (44 U.S.C. § 1510(a)).  The Office of the Federal Register prepares and publishes the codifications appearing in the Code.  The Federal Register, the Code of Federal Regulations, and other series of publications produced pursuant to the general authority of the Federal Register Act are available to the public through sales, OFR and other websites ([http://www.archives.gov/federal_register/index.htm]), and distribution to federal depository libraries.”).

[51] 44 U.S.C. § 1510(a) (defining the Code of Federal Regulations as a “complete codification of the documents of each agency of the Government having general applicability and legal effect, issued or promulgated by the agency by publication in the Federal Register or by filing with the Administrative Committee, and are relied upon by the agency as authority for, or are invoked or used by it in the discharge of, its activities or functions”).

 


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