Nonsubstantive Rules

The legislature delegates its rulemaking power to administrative agencies when it lacks the experience and expertise in certain matters.  The federal Administrative Procedure Act (APA) lays the procedure to be followed by the agencies to adopt new rules.

Among the various types of rules that administrative agencies create, interpretive rules, general statements of policy, and rules of agency organization, procedure, or practice are nonsubstantive rules because these rules have no binding effect on the public.  As a general rule, the APA provides that abiding by the notice and comment requirement is necessary to an agency while drafting a rule.  The notice and comment requirement states that a notice about a new rule should be published and comments received from the public should be applied to the rules if they are not against government policy.  However, the notice and comment rulemaking procedure does not apply to nonsubstantive rules.

Interpretative rules are rules issued by an administrative agency to clarify or explain existing laws or regulations.[i] These rules are exempted from the notice and comment provisions of APA in order to allow agencies to avoid inconvenience while explaining ambiguous terms in statutes.[ii] Rules of agency organization, procedure, or practice simply prescribe the manner in which the parties can present themselves or their viewpoints before the agency.[iii] These rules are exempt from the notice and comment provisions of APA, if they do not alter the rights or interests of the parties concerned.[iv] The exemption from rule-making requirements of APA is allowed only when an agency’s interest in retaining independence in its internal operations is not against general public interest.

General policy statements of an administrative agency operate as a guide to the agency’s exercise of discretion.[v] Agency policy statements are exempted from notice and comment requirement of the APA in order to allow agencies to announce their non-confirmed intentions for the future without obligating themselves.  An administrative agency’s directive is also exempted from the notice-and-comment requirements of the APA.  It can be modified or abolished any time.

However, interpretive rules and general statements of policy are not entirely exempt from all rulemaking procedures in APA.  For example, it is a procedure under the APA that effectiveness of agency rules can be delayed by 30 days if the rules are not made public.[vi] However, this procedure is inapplicable to nonsubstantive rules. Nonsubstantive rules will not be delayed in coming to effect.  However, these rules should be published by the agencies after adopting the same for guiding the public about the intention of the rules.

When an agency’s rules have substantive impact on the public, exemption from publishing the rule cannot be provided to the agency.[vii] The judiciary can independently inquire into the substance and impact of a policy statement while conducting judicial reviews.  The courts can categorize a rule as a legislative rule even if it is in the guise of an interpretative rule, when the rule has a major substantive legal effect on those regulated.[viii]

[i] American Federation of Government Employees v. United States, 622 F. Supp. 1109 (N.D. Ga. 1984)

[ii] Sequoia Orange Co. v. Yeutter, 973 F.2d 752 (9th Cir. Cal. 1992)

[iii] Chamber of Commerce of the United States v. United States DOL, 174 F.3d 206 (D.C. Cir. 1999)

[iv] Nat’l Mining Ass’n v. Sec’y of Labor, Mine Safety & Health Admin., 589 F.3d 1368 (11th Cir. 2009)

[v] Home Builders Ass’n of Chester & Del. Counties v. Commonwealth, 828 A.2d 446 (Pa. Commw. Ct. 2003)

[vi] LEWIS-MOTA v. SECRETARY OF LABOR, 469 F.2d 478 (2d Cir. N.Y. 1972)

[vii] National Helium Corp. v. Federal Energy Administration, 569 F.2d 1137 (Temp. Emer. Ct. App. 1977)

[viii] Scott v. State, 265 N.J. Super. 591 (App.Div. 1993)


Inside Nonsubstantive Rules