Regulation (Public Administration)

A broad term that encompasses both rules and regulations, which are related terms but not synonymous.

There are three types of agency regulations:

• 1.
  Every agency head has the authority to issue “housekeeping” regulations, which are inherent with the position and may also be authorized by law—for example, in the case of the federal government, to issue regulations to govern the internal affairs of the agency. Regulations in this category may include subjects such as conflicts of interest, employee travel, and delegations to organizational components, including the custody, use, and preservation of its records, papers, and property. This does not authorize rulemaking that creates substantive legal rights.
• 2.
  Agencies also have inherent authority to issue pro cedural rules to govern their internal processes, as well as “interpretive” rules that express the agency's policy positions or views in a way that does not bind outside parties or the agency itself.
• 3.
  Last, there are “legislative” or “statutory” regulations. Regulations in this category, which can only be issued pursuant to a specific statutory grant of authority, create rights and obligations and address other substantive matters in ways that have the force and effect of law. In effect, these regulations constitute the exercise of authority delegated to the agency by law to further “leg islate” by fleshing out the underlying statute that the agency is charged with implementing. The scope and [Page 442]specificity of such a congressional delegation of legislative authority to an agency will often determine how much deference the courts will accord to the agency's regulations and to the agency's interpretation of the laws it implements. It is not unusual for Congress to grant agencies statutory authority to issue such regulations. When Congress enacts a new program statute, it typi cally does not prescribe every detail of the statute's implementation but leaves it to the administering agency to “fill in the gaps” by regulation.

As used in administrative procedures, the third example is the type of regulation that is the object of rulemaking. The term rule, in pertinent part, does not include any rule relating to agency management or personnel or any rule of agency organization, procedure, or practice that does not substantially affect the rights or obligations of nonagency parties.

By issuing regulations, an agency may voluntarily (and perhaps even inadvertently) limit its own discretion. Generally, “an agency must comply with its own regulations, even if the action is discretionary by statute.” Generally, “legislative or statutory regulations that are otherwise valid (i.e., they are within the bounds of the agency's statutory authority) have the force and effect of law,” which means “that the regulations are binding on all concerned, the issuing agency included, and that the agency cannot waive their application on an ad hoc or situational basis.” The Supreme Court provided detailed instruction as to when an agency regulation is entitled to the force and effect of law. The regulation “must have certain substantive characteristics and be the product of certain procedural requisites.” Specifically, the Court listed three tests that must be met: (1) the regulation must be a substantive or legislative regulation affecting individual rights or obligations— regulations that are interpretative only generally will not qualify; (2) the regulation must be issued pursuant to, and subject to any limitations of, a statutory grant of authority; and (3) the regulation must be issued in compliance with any procedural requirements imposed by Congress. This generally means the Administrative Procedures Act (APA), unless the regulation falls within one of the exemptions previously discussed.

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