Intelligence Law School - Course 1: Lesson 5.2.3 Non-Legislative Rules


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LESSON 5: ADMINISTRATIVE LAW


5.2 Agency Rules


5.2.3 Non-Legislative Rules


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5.2.3 Non-Legislative Rules

5.2.3.1 Non-Legislative Rules Generally

Now we’re going to move into non-legislative rules, which are important despite the fact that technically they lack legal force.[1]

                        

Remember what I told you at the beginning of this course: Every action that takes place inside an agency is governed by law—even though it might not always seem that way.  

Every action is governed by law—from the issuance of the most critical national security directives issued by the Secretary of Defense all the way down to the “No Smoking Sign” in the NSA’s bathrooms at Fort Meade.

Even when an agency employee is exercising discretionary authority, how he or she executes that discretionary authority is going to be directed by some sort of internal agency procedures or a directive of some sort.

Under the APA, all these documents published by an agency to tell its employees how to do their jobs that aren’t legislative rules will be non-legislative rules.

 

Remember that under the APA when an agency produces something like the guidelines I just mentioned it has to be engaged in either:

Ø  Rulemaking; or

Ø  Adjudication.

 

These directives and manuals aren’t the product of adjudication.

They’re clearly rules.

Non-legislative rules.

 

5.2.3.2 Statutory Authority for Agencies to Issue Non-Legislative Rules

Non-legislative rules, as you know, are rules issued by an agency that do not have the force and effect of law.

They don’t have the force and effect of law because they weren’t promulgated pursuant to a delegation of lawmaking authority to the agency by Congress, or they weren’t issued in compliance with the applicable statutory procedures for issuance of a legislative rule.

 

The vast majority of administrative rules you’re going to encounter in U.S. intelligence law are non-legislative rules.

Non-legislative rules probably outnumber legislative rules 1000-to-1 in the intelligence community.

 

Ø  Statutory Authority to Issue Non-Legislative Rules: Okay, now if you’re savvy, you’re probably saying to yourself—“Hey! I thought agencies couldn’t even order a roll of toilet paper without statutory authority to do it. How are non-legislative rules even possible?”

o   Nice catch!

o   You’re absolutely right.

o   Agencies don’t have any independent constitutional authority of their own, so anything they do has to stem from a power granted by Congress in an organic or enabling statute.

o   Since non-legislative rules are admittedly the product of rulemaking without a congressional delegation of lawmaking power, it’s reasonable to ask how agencies have the statutory authority to issue them at all.

o   As a practical matter, an agency’s director will ordinarily be given statutory authority to issue non-legislative rules in the organic statute that creates their position.

o   But even if Congress were to forget to put this power into their enabling statutes, the head of an agency still has the power to issue internal rules to manage their agency and properly administer its statutory duties.

o   [QUESTION] But how is that possible without statutory authority?

o   The answer comes from a statute passed way back in 1789, called the Housekeeping Act.[2]

 

Ø  The Housekeeping Act of 1789: The Housekeeping Act of 1789 is a poorly worded delegation of non-legislative rulemaking power given to all department heads.

o   It is codified in Title 5 of the U.S. Code at Section 301.

o   In it, Congress grants executive department heads a general power to issue what it called “regulations” for the internal management of their department.[3]

§  What it calls “regulations” are really just non-legislative rules.[4]

o   Specifically, it says:

§  “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.”[5]

o   Legislative History: This statute was originally passed in 1789 and signed into law by George Washington.[6]

§  It’s as old as dirt, and fundamental to the operations of all agencies including members of the U.S. Intelligence Community.

 

Ø  Definition of a Housekeeping “Regulation”: The use of the word “regulation” in the Housekeeping Act is very misleading to anyone studying administrative law after 1946.

o   You have to keep in mind the Housekeeping Act was enacted 157 years before the Administrative Procedure Act, so the term “regulation” didn’t carry the same meaning as it does today.

§  Today, the term “regulation” almost always signifies a legislative rule with the force and effect of law.

§  The so-called “Departmental Regulations” issued by agency heads under the Housekeeping Act of 1789 are not legislative rules, and they do not have the force and effect of law.

§  A delegation of lawmaking power that broad would violate something called the Nondelegation Doctrine, because Congress is required to provide an intelligible principle to guide agencies in carrying out legislative rulemaking, and cannot simply delegate unlimited lawmaking authority to all agency heads in all future circumstances.[7]

§  Chrysler Corp. v. Brown (1979): The Supreme Court clarified this in a 1979 case, Chrysler Corp. v. Brown.[8]

§  Even though the Housekeeping Act calls its rules “regulations” they’re really just non-legislative rules—mostly rules of agency organization, procedure, and practice.[9]

 

5.2.3.3 The 3 Types of Non-Legislative Rules Generally

There are 3 types of non-legislative rules mentioned in the APA:[10]

Ø  They can be either:

o   Interpretive Rules;[11]

o   General Statements of Policy;[12] or

o   Rules of Agency Organization, Procedure, or Practice.

 

The APA doesn’t define these three types of non-legislative rules, so there is a bit of disagreement between some judges as to what they mean.[13]

Luckily for you, the difference between the three different types of non-legislative rules doesn't have much practical significance in the intelligence law context.

The main significance of the distinction between these rules has to do with the level of deference they’re given when scrutinized by reviewing courts—and intelligence law rules are almost never scrutinized by any courts.

 

5.2.3.4 Procedures for Non-Legislative Rulemaking

Ø  APA Procedures for Non-Legislative Rulemaking: Non-legislative rules don’t have the force and effect of law and ordinarily affect only the agency or government itself, so the APA’s procedures for non-legislative rulemaking are much less stringent than for legislative rules.

o   The APA’s informal rulemaking section—Section 553—specifically exempts non-legislative rules from most—but not all—of its default mandatory procedures for informal rulemaking.

o   Remember how I told you there were two categories of rules that were completely exempt from Section 553?[14]

§  Section 553(a)—completely exempts rules dealing with either:

·         (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.”[15]

o   Well, it’s not like that for non-legislative rules.

o   These totally exempt rules aren’t even governed by Section 553 at all—none of it.

o   Non-legislative rules, on the other hand, are still governed by Section 553; they’re just exempt from all but one of its procedures.

§  Specifically, the last provision in section 553—found in 553(e).

§  553(e) requires agencies to give interested persons the right to petition for the issuance, amendment, or repeal of any rule.[16]

§  So if there’s a non-legislative rule you don’t like, you have a right to petition the agency to amend or repeal it.

§  You can also petition them to issue a rule, if you think something’s missing.

§  Just a heads up for those of you with too much time on your hands.

 

Ø  Publication Requirement for Non-Legislative Rules under FOIA: Although Section 553’s 30-day-delay provision applies only to the publication of legislative rules that doesn’t mean that non-legislative rules don’t ever need to be published in the Federal Register.

Ø  Most of the non-legislative rules we talk about in intelligence law actually do have to be published—they just don’t need to wait 30 days before they can enter into effect like legislative rules under the APA.

o   The publication requirement for non-legislative rules isn’t found in Section 553 of Title 5.

o   It’s found in Section 552.

§  Section 552 is right next to 553 because it was originally enacted as the notoriously weak open government section of the APA.[17]

§  The APA’s weak provisions in Section 552 were largely replaced and greatly improved by a later statute you all know and love—the Freedom of Information Act. [18]

§  The Freedom of Information Act, or FOIA, is found in Title 5 of the U.S. Code at Section 552.

§  It is what requires non-legislative rules to be published in the Federal Register and made available to the public,[19] even though the original publication requirement under the Federal Register Act of 1935 and Section 553’s 30-day delay provision both only apply to legislative rulemaking.

o   FOIA’s publication requirement is huge, and applies to all sorts of agency publications[20]—not just legislative rules like the previous requirements in the old Federal Register Act of 1935.[21]

§  FOIA requires tons of stuff to be published far beyond the simple categories of legislative and non-legislative rules used in the APA’s framework.[22]

o   And just like with all mandatory statutory procedures, FOIA’s publication requirement also has teeth.

§  It requires all these different types of agency documents to be published in the Federal Register, and then it says that if they aren’t published there, any sanctions or adverse effects imposed by them have no legal effect.[23]

§  Provided the person affected didn’t have actual notice.

§  If they actually knew about the matter through personal service or some other means they’re still responsible.[24]

§  Ignorance is bliss under the APA and FOIA.

 

5.2.3.5 “Interpretive Rule” Defined

Ø  Interpretive Rules: An interpretive rule is a non-legislative agency rule that interprets a statute or regulation that it administers.[25]

o   Statutes are often drafted at a relatively high-level of generality as to what they require.

§  Agencies promulgate interpretive rules to express their interpretation of how a particular statute applies to their specific operations.

o   Issued to Advise the Public of the Agency’s Construction of the Statutes and Rules it Administers: The Attorney General’s Manual on the Administrative Procedure Act described an interpretive rule as one: “issued by an agency to advise the public of the agency’s construction of the statutes and rules which it administers.”

§  In a 1978 case called Vermont Yankee Nuclear Power Corporation v. Natural Resources Defense Council, the Supreme Court used this definition from the AG’s Manual in its opinion, so this definition is pretty uncontroversial.[26]

o   Does Not Create New Rights or Duties, but Only Reminds Parties of Existing Duties: In a 1998 case from the Federal Circuit—the court clarified a little further by saying that “[a]n interpretative statement simply indicates an agency's reading of a statute or a rule. It does not intend to create new rights or duties, but only reminds affected parties of existing duties.”[27]

 

5.2.3.6 “General Statement of Policy” Defined

Ø  General Statements of Policy: General Statements of Policy are agency rules most often issued internally to staff or externally to the public to make declarations with respect to policy matters within its jurisdiction.[28]

 

o   Two-Part Test: As for General Statements of Policy, a case called Mada-Luna v. Fitzpatrick gives a simple 2-prong test to determine if a directive qualifies.

§  “For an agency directive to qualify under the general statement of policy exception under the Administrative Procedure Act, 5 U.S.C. § 553, it must satisfy two requirements:

·         1) First, it must operate only prospectively[; and]

·         2) Second, it must not establish a binding norm or be finally determinative of the issues or rights to which it is addressed, but must instead leave agency officials free to consider the individual facts in the various cases that arise.”[29]

 

o   Statements of Intent to Use Discretionary Power: General statements of policy are often used by agencies to inform the public about how they’re going to exercise their discretionary authority in a particular case.[30]

§  Take the FBI’s 10 most wanted list, for example.

§  It’s a classic general statement of policy indicating the 10 criminal they’re looking for most strenuously.

§  Deciding who to investigate and which suspected criminals to prioritize is a matter left to the agency’s discretion by law.

§  This list is simply a way for the Bureau to let the public know who to be on the lookout for. 

 

o   FOIA: FOIA’s Publication requirement still applies to General Statements of Policy: It’s also important to remember that just because a rule is classified as a “general statement of policy,” doesn’t mean it gets out of FOIA’s publication requirement.[31]

§  FOIA explicitly requires agencies to publish their
statements of general policy” in the Federal Register.[32]

§  Notice that Congress switched up the wording a bit here.

·         “Statements of general policy;[33] are different from

·         General statements of policy.”[34]

·         What’s the difference?

·         Well, FOIA requires publication “Statements of general policy,[35] specifically because the general policies of an agency are important to the public.

·         Under the APA’s wording, by contrast, a “general statement of policy” could be anything from a critical policy statement designed to inform the public of the how the agency plans to carry out its mission, all the way down to the no-smoking policy in the agency’s latrine.

§  FOIA always requires publication of an agency’s general policies. [36]

§  FOIA doesn’t always require publication of general statements.[37]

 

5.2.3.7 “Rules of Agency Organization, Procedure, or Practice” Defined

Ø  Rules of Agency Organization, Procedure, or Practice: The last of the 3 categories of non-legislative rules mentioned in the APA are “Rules of Agency Organization, Procedure, or Practice.”[38]

o   This is just a residual category that covers rules for general agency management[39] that don’t fit squarely into either of the other two categories of non-legislative rules:

§  (1) Interpretive Rules;[40] or

§  (2) General Statements of Policy.[41]

 

5.2.3.8 Examples of Sui Generis Agency Nomenclature for Non-Legislative Rules: The DoD Directives Program

So those are the three types of non-legislative rules.

They come in all different shapes and sizes when issued inside the hundreds of different agencies in the federal government.

While the APA breaks everything down into these nice, neat categories, the agencies themselves have used a dizzying array of inconsistent nomenclature to describe their various issuances.

 

To give you an idea of the degree of inconsistency in administrative rulemaking, check out the Department of Defense’s administrative smorgasbord.

 

The Pentagon has its own sui generis administrative rule system it calls the DoD Directives Program.[42]

It breaks down all of DoD’s rules into six different types of issuances:[43]

Ø  Directives;[44]

Ø  Instructions;[45]

Ø  Manuals;[46]

Ø  Directive-Type Memoranda;[47]

Ø  Administrative Instructions;[48] and

Ø  Publications.[49]

 

Many of DoD’s unclassified issuances are available online, if you’d like to check them out.

I’ll put a link in the lecture transcript.[50]

 

Don’t let DoD’s laundry-list taxonomy scare you.

This is the kind of sui generis nomenclature you’re going to see across the board in administrative law.

Every agency likes to do things just a little bit differently.

 

Just remember that every single one of the different DoD issuances I just mentioned are almost always going to be nothing more than a non-legislative rule with a fancy name and without the force of law.

After you realize that, where an individual issuance falls in the APA’s three categories doesn’t really matter that much.

It would matter if a court ever had to scrutinize one of these DoD rules for some reason, but this almost never happens.  

 

The importance of each is more normative than anything else.

They can tell you:

Ø  How does DoD’s leadership guide its employees when carrying out intelligence functions?

Ø  What rules do intelligence personnel actual use to make operational decisions on the ground?

Ø  How do they curb the potential for abuse of discretion by these operatives?

Ø  How well structured are these rules to protect the rights of individuals in the absence of transparency and meaningful external oversight?

Ø  How might they be changed to better protect individual rights without thwarting efforts to guard against genuine national security threats—I’m talking about actual threats, not just imaginary threats or vaguely conceivable potential threats.

 

These are the important questions you want to ask yourself when studying non-legislative internal agency directives.

 

5.2.3.9 Practical Effect of the Legislative/Non-Legislative Distinction

Ø  Practical Effect of the Legislative/Non-Legislative Distinction: The effect of the distinction between a legislative rule and a non-legislative rule would be the effect it has on the substantive legal rights of violators.[51]

o   Remember that only a legislative rule with the force and effect of law can be the basis for the imposition of a penalty for non-compliance.[52]

o   If an agency employee violates a legislative rule, it could be the basis for administrative sanctions and even his termination from the agency because the rule he broke has the force of law.[53]

o   The legal effect of the rule may affect the disposition of any adjudicative proceeding he might be afforded as due process.

o   A non-legislative rule like a general statement of policy, on the other hand, could not affect his substantive rights to this degree.[54]

§  They would impose no binding effect on the adjudicator’s determination.

§  They couldn’t be the basis for sanctions.[55]

§  They certainly couldn’t be the basis for prosecution.

§  They might be used as normative evidence to aid adjudicators in making their final conclusion, but in order for the government to impose a penalty on the violator they would have to find a statute or regulation with the force of law to base it on.[56]

 

Ø  NSA Hand-Washing Rule Hypothetical: I’ll give you a hypothetical example from the intelligence context, to give you an idea of what the violation of a non-legislative rule might looks like.

o   Let’s say the Director of National Intelligence is using the latrine one day while visiting the NSA at Fort Meade.

o   A guy in sitting in one of the stalls behind him is really going at it.

o   Out comes a cafeteria worker and he walks straight out the door without washing his hands.

o   The DNI is scandalized!

o   He pulls out his notebook and writes up several signs that say:

§  “All NSA employees must wash their hands before returning to work!!!”

§  He then runs around to all the NSA’s bathrooms taping them up.

 

o   Rulemaking or Adjudication: Now, this is clearly “rulemaking,” if you have to place it into a category.

§  The DNI’s new sign in the bathroom is a “rule” not an “order.”

§  It’s “an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy”[57]

§  It also “describes the organization, procedure, or practice requirements of an agency” so it’s a “rule” any way you slice it.

o   Legislative v. Non-Legislative Rule: Now, it’s definitely not a legislative rule because it wasn’t issued pursuant to a statutory delegation of lawmaking power.

§  The DNI has no statutory authority to regulate hygiene at NSA Headquarters.

§  So these signs at most are just non-legislative rules.

o   Legal vs. Practical Effects of the Non-Legislative Distinction:

§  They couldn’t be used to penalize anybody.[58]

§  That nasty cafeteria worker can refuse to wash his hands and he can’t be punished for violating the DNI’s hand-washing sign.

§  [PAUSE - JOKE] Now, there are plenty of other rules and statutes they could nail the guy with if the DNI was able to convince the NSA Director to use his statutory authority to go after the guy—they just couldn’t nail him under that hand-washing sign.

§  [PAUSE - JOKE] The NSA Director can always fire the guy using his power to fire employees in the interests of national security.[59]

·           Poor hygiene as a security threat might be a stretch, though … even for the NSA Director.[60]

§  So the cafeteria worker can probably ignore the DNI’s sign and know that—while he may be affecting the DNI’s confidence in his cuisine—without statutory authority that hand-washing sign he posted can’t serve as the basis for formal discipline.

 

5.2.3.10 Importance of Non-Legislative Agency Rules in U.S. Intelligence Law

The vast majority of agency rules—especially in the intelligence context—are non-legislative rules.

Although these rules technically lack the force and effect of law, they are incredibly important for the study of intelligence law generally.

 

These rules represent binding agency interpretations of the legal requirements under which they operate, and they are functionally binding on every employee within the massive bureaucratic machinery.

Internal agency rules govern everything inside intelligence agencies.

They form the operative legal framework of rules governing virtually every aspect of intelligence agency operations from the procedures for submitting travel vouchers for a CIA operations officer on his way back from killing Osama Bin Laden[61]—all the way down to the General Counsel memo guiding an NSA employee as he surveils an American journalist for criticizing the Pentagon.

 

These interpretive rules and policy statements both establish and reveal the normative context within which all intelligence activities take place.

Non-legislative rules guide implementation of an agency’s mission on the ground.  

And as a result, they may be the single best source for understanding an intelligence agency’s respect for the rule of law through its controls at the operational level.

 

Hand-washing signs aside, always remember that, although non-legislative rules may not technically have the force and effect of law, they are still more-or-less mandatory for employees on the ground.

They control more of the day-to-day activities that go on inside these agencies than any other kind of law we’ve got; that’s why I said they are the heart of U.S. intelligence law.

Ø  A SIGINT officer can’t just ignore a new policy memo from the NSA Director and blow off his supervisor saying, “Hey, man! That ain’t law.”

o   He’ll find himself out of Fort Meade and working for General Dynamics in a heartbeat with that kind of attitude.

 

 

Footnotes

[1] NOTE ON “LEGAL EFFECT:” One 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] 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.").

[3] 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.").

[4] See Chrysler Corp. v. Brown, 441 U.S. 281, 310 (1979) (rejecting the use of the Housekeeping Act to promulgate substantive rules, and stating "there is nothing in the legislative history of § 301 to indicate it is a substantive grant of legislative power to promulgate rules authorizing the release of trade secrets or confidential business information.  It is indeed a 'housekeeping statute,' authorizing what the APA terms 'rules of agency organization, procedure or practice' as opposed to 'substantive rules.'").

[5] 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.").

[6] 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 to keep agencies from using the limited non-legislative rulemaking authority it provides as a means to pass rules restricting legitimate public access to information about government processes. The 1958 amendment consisted on adding one sentence to the original act: “This section does not authorize withholding information from the public or limiting the availability of records to the public.” H.R. Rep. No. 1461, 85th Cong., 2d Sess. 1 (1958), reprinted in 1958 U.S.C.C.A.N. 3352, 3353 (noting the concern in Congress that the original act’s language had led to abuse by executive officials, namely that, by misusing so-called Housekeeping Regulations, “executive officials have let every file clerk become a censor”).

[7] The Non-Delegation Doctrine is not very relevant to intelligence agencies because the rarely engage in substantive rulemaking and use non-legislative rules solely to carry out executive functions. Under the Constitution, executive functions fall within the exclusive province of the President by virtue of the vesting clause of Article II. His position as chief executive gives the President great latitude when deciding how to execute the laws passed by Congress, and he can exercise considerable influence over Executive Branch agency personnel when setting policies or urging administrative action; however, it’s important to remember that the President cannot use his executive powers to violate the laws or order agency personnel to do so—such action would not be “executing” the law. It would be violating the law, and his Article II obligation to take care the laws be faithfully executed.

[8] Chrysler Corp. v. Brown, 441 U.S. 281, 310 (1979) (rejecting the use of the Housekeeping Act to promulgate substantive rules, and stating "there is nothing in the legislative history of § 301 to indicate it is a substantive grant of legislative power to promulgate rules authorizing the release of trade secrets or confidential business information.  It is indeed a 'housekeeping statute,' authorizing what the APA terms 'rules of agency organization, procedure or practice' as opposed to 'substantive rules.'").

[9] The legislative history of the Housekeeping Act makes it clear that what Congress called “regulations” back them are what we now refer to as non-legislative rules, and this is exactly how the Supreme Court has interpreted it. See Chrysler Corp. v. Brown, 441 U.S. 281, 310 (1979).

[10] 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).

[11] 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.”).

[12] 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).

[13] The definitions of these three types of non-legislative rules are not as consistent as one would hope, and the differences between them are often a matter of debate. One judge on the D.C. Circuit called the “spectrum between a clearly interpretive rule and a clearly substantive one … a hazy continuum.” American Hosp. Ass'n v. Bowen, 834 F.2d 1037 (D.C. Cir. 1987) (emphasis added). In another D.C. Circuit opinion, the majority complained that, quote, “the distinction between legislative and interpretative rules is enshrouded in considerable smog.” General Motors Corp. v. Ruckelshaus, 742 F.2d 1561, 1565 (D.C. Cir. 1984) (en banc).

[14] 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.”).

[15] 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.”).

[16] 5 U.S.C. § 553 (e) ("Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.").

[17] See Congressional Research Serv., General Management Laws: A Compendium, § I(E), RL30795 (MAY 19, 2004), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30795_5-19-2004.pdf (“The Freedom of Information (FOI) Act was originally adopted by Congress in 1966 (80 Stat. 250) and was codified in 1967 (81 Stat. 54; 5 U.S.C. § 552), when it also became operative law. As enacted, the FOI Act replaced the public information section of the Administrative Procedure Act (APA) (60 Stat. 237), which was found to be ineffective in providing the public with a means of access to unpublished records of federal departments and agencies.  Subsection (a) of the FOI Act reiterated the requirements of the APA public information section that certain operational information — e.g., organization descriptions, delegations of final authority, and substantive rules of general policy — be published in the Federal Register. Subsection (b) statutorily established a presumptive right of access by any person — individual or corporate, regardless of nationality — to identifiable, existing, unpublished records of federal departments and agencies without having to demonstrate a need or even a reason for such a request.  Subsection (b)(1)-(9) lists nine categories of information that may be exempted from the rule of disclosure.  The burden of proof for withholding material sought by the public was placed upon the government.  Denials of requests could be appealed to the head of the agency holding the sought records, and ultimately pursued in federal district court.  The law specifies the direct costs which agencies may recover when responding to requests for records.”).

[18] 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. […]”).

[19] 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. […]”).

[20] 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. […]”).

[21] 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.”).

[22] Freedom of Information Act, 5 U.S.C. § 552(a)(1) (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. […]”); 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. […].”).

[23] See 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. […].”).

[24] See 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. […].”) (emphasis added).

[25] 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.”).

[26] Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 546, 55 L. Ed. 2d 460, 98 S. Ct. 1197 (1978); see also Pacific Gas and Electric Co. v. Federal Power Commission, 164 U.S. App. D.C. 371, 506 F.2d 33, 38 n.17 (1974).

[27] Paralyzed Veterans of Am. v. West, 138 F.3d 1434 (Fed. Cir. 1998).

[28] 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.”).

[29] Mada-Luna v. Fitzpatrick, 813 F.2d 1006 (9th Cir. 1987).

[30] General statements of policy can sometimes be tricky because they often state policies that have substantive effect on the legal rights of individuals. When an agency has a broad delegation of lawmaking power from Congress in its enabling statute, sometimes confusion can arise over whether certain General Statements of Policy are really legislative rules that need to be promulgated pursuant to the APA’s rulemaking procedures. For intelligence law purposes, however, this situation doesn’t come up because there’s almost never a situation where a General Statement of Policy by an intelligence agency would be applied directly to an individual in a way directly affecting their rights.

[31] 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(a)(1)(D) (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—[…] (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; […]”) (emphasis added).

[33] FOIA uses the term “statements of general policy” whereas Section 553 of the APA uses the term “general statements of policy.” See Freedom of Information Act, 5 U.S.C. § 552(a)(1)(D) (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—[…] (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; […]”) (emphasis added); compare with 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; [...]) (emphasis added); compare with Freedom of Information Act, 5 U.S.C. § 552(a)(1)(D) (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—[…] (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; […]”) (emphasis added).

[34] Section 553 of the APA uses the term “general statements of policy” whereas FOIA uses the term “statements of general policy.” See 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; [...]) (emphasis added); compare with Freedom of Information Act, 5 U.S.C. § 552(a)(1)(D) (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—[…] (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; […]”) (emphasis added).

[35] FOIA uses the term “statements of general policy” whereas Section 553 of the APA uses the term “general statements of policy.” See Freedom of Information Act, 5 U.S.C. § 552(a)(1)(D) (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—[…] (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; […]”) (emphasis added); compare with 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; [...]) (emphasis added); compare with Freedom of Information Act, 5 U.S.C. § 552(a)(1)(D) (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—[…] (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; […]”) (emphasis added).

[36] FOIA requires publication of “general policy,” whereas Section 553 of the APA exempts an agency’s “general statements” from most of its mandatory rulemaking procedures for legislative rules. See Freedom of Information Act, 5 U.S.C. § 552(a)(1)(D) (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—[…] (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; […]”) (emphasis added); compare with 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; [...]) (emphasis added); compare with Freedom of Information Act, 5 U.S.C. § 552(a)(1)(D) (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—[…] (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; […]”) (emphasis added).

[37] FOIA requires publication of “general policy” which is different from the “general statements” the APA exempts from certain mandatory rulemaking procedures under Section 553. See Freedom of Information Act, 5 U.S.C. § 552(a)(1)(D) (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—[…] (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; […]”) (emphasis added); compare with 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; [...]) (emphasis added); compare with Freedom of Information Act, 5 U.S.C. § 552(a)(1)(D) (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—[…] (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; […]”) (emphasis added).

[38] 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; [...]) (emphasis added).

[39] See generally Chrysler Corp. v. Brown, 441 U.S. 281, 310 (1979) (rejecting the use of the Housekeeping Act to promulgate substantive rules, and stating "there is nothing in the legislative history of § 301 to indicate it is a substantive grant of legislative power to promulgate rules authorizing the release of trade secrets or confidential business information.  It is indeed a 'housekeeping statute,' authorizing what the APA terms 'rules of agency organization, procedure or practice' as opposed to 'substantive rules.'").

[40] 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.”).

[41] 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).

[42] U.S. Dep't of Defense, Instruction No. 5025.01, § 4 (Oct. 28, 2007) (“DoD Directives Program.  The single, uniform program that the DoD Components shall use to develop, coordinate, approve, publish, and review DoD issuances.  Formerly referred to as the ‘DoD Directives System.’”).

[43] U.S. Dep't of Defense, Instruction No. 5025.01, Part II (Oct. 28, 2007) (“DoD issuance.  One of the following 6 types of issuances published by the Department of Defense:  DoDD, DoDI, DoDM, DTM, AI, and DoD Publication.  The term “DoD Publication” shall be discontinued upon reissuance of all DoD Publications as DoDMs.”).

[44] U.S. Dep't of Defense, Instruction No. 5025.01, Part II (Oct. 28, 2007) (“DoDD.  A DoD issuance that EXCLUSIVELY establishes policy, assigns responsibility, and delegates authority to the DoD Components.  DoDDs shall not contain procedures.  They shall consist of the following two types of issuances: (1) Direct Oversight DoDD:  A DoD issuance, no more than 8 pages in length including enclosures, reserved for subjects requiring direct oversight by the Secretary or Deputy Secretary of Defense, approved and signed only by the Secretary or Deputy Secretary of Defense, and consisting only of one or more of the below types of information. (a) Non-delegable responsibilities assigned to the Secretary or Deputy Secretary of Defense.  (b) Assignment of functions and resources between or among the Heads of the DoD Components and/or OSD Components.  More specifically, this is when the fundamental responsibilities, functions, or authorities of the Head of the Component are being defined or redefined.  These major assignments should not be confused with the collateral functions routinely mentioned in an issuance in which the Head of an OSD Component assigns a responsibility to (and coordinates with) the Head of another Component to perform a task within an assigned functional area. (c) EA assignments, which consist of the designation of an EA and the assignment of related responsibilities and authorities. (d) Matters of special interest to the Secretary or Deputy Secretary of Defense such as advisory boards or urgent Global War on Terrorism matters.  They may be items selected by the Secretary or Deputy Secretary or recommended by the Head of an OSD Component. (2) Chartering DoDD:  A DoDD that establishes the mission, responsibilities, functions, relationships, and delegated authorities of the Head of an OSD Component or other OSD PAS official, a Defense Agency, a DoD Field Activity, or other major DoD or OSD Component, as required.  Also referred to as an “organizational charter” or “charter Directive.”  Chartering DoDDs comprise a unique DoDD format, developed by O&MP in coordination with DD, and are exempt from the 8-page limit for DoDDs.  Chartering DoDDs shall be signed by the Secretary or Deputy Secretary of Defense, except that where the Under Secretaries of Defense are delegated the authority in their chartering DoDDs, the Under Secretaries of Defense shall issue chartering DoDDs for their subordinate OSD PAS officials.”).

[45] U.S. Dep't of Defense, Instruction No. 5025.01, Part II (Oct. 28, 2007) (“DoDI.  DoDIs consist of the following two levels of issuances.  DoDIs shall be no more than 50 pages in length including enclosures. (1) Policy DoDI:  A DoDI that ESTABLISHES POLICY and assigns responsibilities within a functional area assigned in the Head of an OSD Component’s chartering DoDD, including defining the authorities and responsibilities of a subordinate official or element when these do not meet the criteria for a chartering DoDD.  Policy DoDIs may also provide general procedures for implementing that policy.  They shall be signed by the Heads of the OSD Components.  They shall include the Component’s chartering DoDD as a reference, and, for the Components whose chartering DoDDs have NOT been updated to include the authority to issue policy in DoDIs, they shall include this Instruction as a reference. (2) Non-Policy DoDI:  A DoDI that IMPLEMENTS POLICY established in a DoDD by providing general, overarching procedures for carrying out that policy.  Non-policy DoDIs shall be signed by the Heads of the OSD Components, their Principal Deputies, or the OSD PAS officials as authorized by their chartering DoDDs.”).

[46] U.S. Dep't of Defense, Instruction No. 5025.01, Part II (Oct. 28, 2007) (“DoDM:  A DoD issuance providing detailed procedures for implementing policy established in DoDDs and DoDIs.  DoDMs shall include the specific, procedural information formerly published as DoD Publications.  All DoD Publications that are not DoDMs (i.e., catalogs, compendiums, directories, handbooks, indexes, inventories, lists, modules, pamphlets, plans, series, standards, supplements, and regulations) shall be converted into DoDMs on their next reissuance.  DoDMs shall be signed by the Heads of the OSD Components, their Principal Deputies, or the OSD PAS officials as authorized by their chartering DoDDs.  DoDMs exceeding 100 pages in length shall be separated into two or more volumes.”).

[47] U.S. Dep't of Defense, Instruction No. 5025.01, Part II, Part II (Oct. 28, 2007) (“DTM:  A memorandum issued ONLY for time-sensitive actions that affect current issuances or that will become DoD issuances, and ONLY when time constraints prevent publishing a new issuance or a change to an existing DoD issuance. DTMs establish DoD policy and assign responsibilities, or implement policies and responsibilities established in existing DoD issuances.  DTMs concerning subjects requiring direct oversight by the Secretary or Deputy Secretary of Defense shall be signed by the Secretary or Deputy Secretary of Defense.  DTMs that establish policy shall be signed by the Heads of the OSD Components.  DTMs that implement policy shall be signed by the Heads of the OSD Components, their Principal Deputies, or the OSD PAS officials as authorized by their chartering DoDDs. DTMs shall not be used to permanently change or supplement existing issuances.  They shall be effective for no more than 180 days from the date signed, during which time they shall be incorporated into an existing DoD issuance, converted to a new DoD issuance, reissued, or canceled.”).

[48] U.S. Dep't of Defense, Instruction No. 5025.01, Part II, Part II (Oct. 28, 2007) (“AI:  A DoD issuance, no more than 50 pages in length, that provides general procedures for implementing policy for the administration of the DoD Components in the NCR that are serviced by WHS.  AIs implement policy established in DoDDs or DoDIs.  AIs shall be signed by the DA&M or the Director, WHS.”).

[49] U.S. Dep't of Defense, Instruction No. 5025.01, Part II, Part II (Oct. 28, 2007) (“DoD Publication.  A DoD issuance that provides detailed procedures for implementing policy established in DoDDs and DoDIs.  TERM TO BE DISCONTINUED upon reissuance of all DoD Publications as DoDMs.  DoD Publications include the following types of issuances approved and signed prior to the effective date of this Instruction:  catalogs, compendiums, directories, handbooks, indexes, inventories, lists, modules, pamphlets, plans, series, standards, supplements, and regulations.”).

[50] DoD maintains a website at http://www.dtic.mil/whs/directives (unclassified) as the official DoD source for electronic publication of DoD issuances.

[51] 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).

[52] 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.").

[53] 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.”).

[54] Only legislative rules with the full force of law may be used to impose a sanction. 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.”).

Also, no agency shall 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).

[55] 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.”).

[56] 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.”).

[57] Administrative Procedure Act of 1946, as amended, 5 U.S.C. § 551 (4) (2010).

[58] In addition, I’m pretty sure he probably forgot to publish it the Federal Register. In order for a binding legislative rule to have the legal effect to impose a penalty, it generally must be published in the Federal Register, unless it’s not required to be published by statute or the affected party has actual and timely notice of the requirements. See 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. […].”).

[59] See 5 U.S.C. § 7532(a)-(b) (2010) ("Suspension and removal (a) Notwithstanding other statutes, the head of an agency may suspend without pay an employee of his agency when he considers that action necessary in the interests of national security. To the extent that the head of the agency determines that the interests of national security permit, the suspended employee shall be notified of the reasons for the suspension. Within 30 days after the notification, the suspended employee is entitled to submit to the official designated by the head of the agency statements or affidavits to show why he should be restored to duty. (b) Subject to subsection (c) of this section, the head of an agency may remove an employee suspended under subsection (a) of this section when, after such investigation and review as he considers necessary, he determines that removal is necessary or advisable in the interests of national security. The determination of the head of the agency is final.").

[60] Under this section, the Director would just have to suspend the employee first before firing, then send him a letter after he’s suspended giving him written notice of the charges, then give him an opportunity to be heard, and then he can boot the guy out the door. See 5 U.S.C. § 7532(c) (2010) ("An employee suspended under subsection (a) of this section who—(1) has a permanent or indefinite appointment; (2) has completed his probationary or trial period; and (3) is a citizen of the United States; is entitled, after suspension and before removal, to—(A) a written statement of the charges against him within 30 days after suspension, which may be amended within 30 days thereafter and which shall be stated as specifically as security considerations permit; (B) an opportunity within 30 days thereafter, plus an additional 30 days if the charges are amended, to answer the charges and submit affidavits; (C) a hearing, at the request of the employee, by an agency authority duly constituted for this purpose; (D) a review of his case by the head of the agency or his designee, before a decision adverse to the employee is made final; and (E) a written statement of the decision of the head of the agency.").  The decision is ultimately left to the Director’s discretion and his decision is final. See 5 U.S.C. § 7532(b) (2010) ("[…] The determination of the head of the agency is final.").

[61] See 50 U.S.C. § 403e (2010) ("Central Intelligence Agency; travel, allowance, and related expenses (a) Travel, allowances, and related expenses for officers and employees assigned to duty stations outside United States.  Under such regulations as the Director may prescribe, the Agency, with respect to its officers and employees assigned to duty stations outside the several states of the United States of America, excluding Alaska and Hawaii, but including the District of Columbia, shall—(1) (A) pay the travel expenses of officers and employees of the Agency, including expenses incurred while traveling pursuant to authorized home leave; […]”).

 


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