Principles of Federal Appropriations Law - US Government ...

Chapter 3
Agency Regulations and Administrative Discretion
procedures of 5 U.S.C. § 553, an amendment or repeal of that regulation
must generally follow the same procedures. Utility Solid Waste Activities
Group v. EPA, 236 F.3d 749 (D.C. Cir. 2001); Consumer Energy Council of
America v. Federal Energy Regulatory Commission, 673 F.2d 425, 446
(D.C. Cir. 1982), aff’d and cert. denied, 463 U.S. 1216 (1983); Detroit
Edison Co. v. EPA, 496 F.2d 244 (6 th Cir. 1974); Citibank, Federal Savings
Bank v. Federal Deposit Insurance Corp., 836 F. Supp. 3, 7 (D.D.C. 1993);
B-221779, supra.
If a regulation is subject to the APA’s informal rulemaking requirements, an
unpublished agency document that purports to amend that regulation is
invalid. Utility Solid Waste Activities Group, 236 F.3d at 754; Fiorentino v.
United States, 607 F.2d 963, 968 (Ct. Cl. 1979), cert. denied, 444 U.S. 1083
(1980); 65 Comp. Gen. 439 (1986); B-226499, Apr. 1, 1987.
It is possible to have a regulation subject to 5 U.S.C. § 553 with an
amendment to that regulation that falls within one of the exemptions, in
which event the amendment need not comply with the APA procedures. See
Detroit Edison, 496 F.2d at 245, 249; B-202568, Sept. 11, 1981; 5 Op. Off.
Legal Counsel 104 (1981).
If a parent regulation is exempt from compliance with the APA but the
agency has, without formally waiving the exemption, published it under
APA procedures anyway, the voluntary compliance will not operate as a
waiver. The agency may subsequently amend or repeal the regulation
without following the APA. Baylor University Medical Center v. Heckler,
758 F.2d 1052 (5 th Cir. 1985); Malek-Marzban v. Immigration &
Naturalization Service, 653 F.2d 113 (4 th Cir. 1981); Washington Hospital
Center v. Heckler, 581 F. Supp. 195 (D.D.C. 1984). Thus, in Malek-Marzban
the Immigration and Naturalization Service (INS) had issued a regulation
without advance notice and comment, citing the “foreign affairs” exception
from APA rulemaking requirements in 5 U.S.C. § 553(a)(1). The court held
that the agency was not bound to follow APA rulemaking procedures in this
case even though it had voluntarily used such procedures for past
regulations that were likewise subject to the foreign affairs exception:
“We are not persuaded by the petitioners’ argument that the
INS is estopped from asserting the foreign affairs exception
because it has routinely complied with the APA rulemaking
requirements in the past. Voluntarily submitting a policy
decision involving a foreign affairs function to rulemaking
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