Step Four: Publication of New Rule

Administrative Agencies have the duty of informing the public before the promulgation of a new rule.  Therefore, publication is a necessary procedural prerequisite to the validity of a substantive rule.  According to the Federal Administrative Procedure Act, legislative rules are to be published in the Federal Register.  A legal notice about the contents of a rule will be given to every one who may be affected by its publication.  However, regulations duly promulgated need not be accompanied by actual notice.  A notice through the internet will not be considered proper publication of the rule or regulation.  Any person violating an unpublished regulation cannot be prosecuted for such violation.  A substantive rule does not have the force and effect of law without publication.  Mandatory publication of a regulation is not necessary for its enforcement against the government.

According to the Federal Administrative Procedure Act, publication of a legislative rule must be made thirty days prior to its effective date.  This time period is set to assist affected persons by giving them ample time to prepare for the effects of the rule.  Any issue related to the rule can also be brought by the affected persons before the rulemaking agency within the period.  Even though publication of a rule less than thirty days prior to its effective date can be a reason for its invalidation, mere failure to publish a regulation within the specific time period will not defeat its effectiveness, provided there is adequate notice of publication.  Publication of the rule prior to thirty days before effective date does not apply to a legislative rule which grants or recognizes an exemption or relieves a restriction, and to interpretive rules and statements of policy.  The thirty day rule may not be applicable to rules relating to a military function of the United States.  Delegations and reservations can be effective regardless of publication in the Federal Register or the Code of Federal Regulations.  Regulations over the functions of military will be held lawful to the extent the defendants had actual notice of the regulation that even without following the thirty day rule.

The Federal Administrative Procedure Act provides for a “good-cause” exception to the requirement of notice of the rule by publication or service thirty days before its effective date.  The test for invoking “good-cause” exception is to check the necessity for immediate implementation against principles of fundamental fairness.  The principles of fundamental fairness require that all affected persons be afforded a reasonable time to prepare for the effective date of a new rule.  If the rule making agency could prove that it was impractical, unnecessary or contrary to the public interest the “good-cause” exception can be availed.  The new regulations should contain the reasons for gaining “good-cause” exception in the new regulations.  Although “good-cause” exception has to be construed in a narrow sense, it is very valuable in situations where the violation of the rules may constitute crimes.


Inside Step Four: Publication of New Rule