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Time of Publication; Effective Date

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 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 case Fluellen v. United States, 44 Fed. Cl. 97 (Fed. Cl. 1999), is about an action against the defendant regarding the non-selection for the plaintiff’s promotion in the air force reserves.  It was alleged by the plaintiff that the Air Force’s use of panels in the promotion process and decision to include so few reserve officers in the promotion process breached statutory authority and abrogated legal protection for reserve officers.  However, the defendant claimed that the selection process was valid and applied for a summary judgment.  The court granted defendant’s motion because there was no material legal error or injustice in the correction board proceeding.  Quoting Fluellen v. United States, 44 Fed. Cl. 97, 100 (Fed. Cl. 1999), the Court opined that “strong policies compel the court to allow the widest possible latitude to the armed services in their administration of personnel matters.”

Inside Time of Publication; Effective Date