The legislature delegates its rulemaking function to administrative agencies when the legislature does not have the time or expertise to deal with specialized rules.
Generally, administrative agencies have to follow the procedure laid down by the federal Administrative Procedure Act (APA) while creating a rule. According to the APA, the administrative rulemaking procedure should involve public participation. The APA also mandates that it is necessary to permit administrative agencies to provide adequate information to interested parties. The APA introduced a notice and comment rule for publishing the initial analysis of agency rules and receiving public comments on the rules.[i] Administrative agencies draft the final rules based on public comments.[ii]
However, the APA exempts administrative agencies from following the regular procedures mentioned above while making rules relating to certain areas. They are as listed:
- A rule involving a military function or foreign affairs function of U.S.
- A matter relating to agency management, personnel, public property, loans, grants, benefits, or contracts.
- Interpretive rules; general statements of policy; or rules of agency organization, procedure, or practice.
Generally, rules regulating military functions are exempted by the APA from following the regular rule making procedures.[iii] Rules that involve military functions are exempt from the federal notice and comment procedure. Administrative agencies need not publish military rule drafts before the public even when the rules relate to regulation of civilian actions. Exception from the APA rulemaking proceedings is provided to military functions because notice to public is impractical, unnecessary, and contrary to public benefit.[iv]
[i] Mares v. Fed. Bureau of Prisons, 401 F. Supp. 2d 775 (S.D. Tex. 2005)
[ii] American Moving & Storage Assoc. v. United States DOD, 91 F. Supp. 2d 132 (D.D.C. 2000)
[iii] Independent Guard Ass’n, Local No. 1 v. O’Leary, 57 F.3d 766 (9th Cir. Nev. 1995)
[iv] Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479 (9th Cir. Cal. 1992)