Prepared by the United States Department of Justice Tom C. Clark, Attorney General, 1947.
III SECTION 4--RULE MAKING
In general, the purpose of section 4 is to guarantee to the public an opportunity to
participate in the rule making process. With stated exceptions, each agency will be required under
this section to give public notice of substantive rules which it proposes to adopt, and to grant
interested persons an opportunity to present their views to it. Where rules are required by statute
to be made on the record after opportunity for an agency hearing, the provisions of sections 7 and
8 as to hearing and decision will apply in place of the less formal procedures contemplated by
section 4 (b). With certain exceptions, no substantive rule may be made effective until at least
thirty days after its publication in the Federal Register. Section 4 also grants to interested persons
the right to petition an agency for the issuance, amendment or repeal of a rule.
In addition to the agencies and functions exempted by section 2 (a), section 4 itself
contains two broad exceptions to its requirements.
" (1) any military, naval, or foreign affairs function of the United States". The exemption
for military and naval functions is not limited to activities of the War and Navy Departments but
covers all military and naval functions exercised by any agency. Thus, the exemption applies to
the defense functions of the Coast Guard and to the function of the Federal Power Commission
under section 202 (c) of the Federal Power Act (16 U.S.C. 824a (c)). Sen. Rep. p. 39 (Sen. Doc.
p. 225); Senate Hearings (1941) p. 502.
As to the meaning of "foreign affairs function", both the Senate and House reports state:
"The phrase 'foreign affairs functions,' used here and in some other provisions of the bill, is not to
be loosely interpreted to mean any function extending beyond the borders of the United States but
only those 'affairs' which so affect relations with other governments that, for example, public rule
making provisions would clearly provoke definitely undesirable international consequences." Sen.
Rep. p. 13; H.R. Rep. p. 23 (Sen. Doc. pp. 199, 257). See also Representative Walter's statement
to the House, 92 Cong. Rec. 5650 (Sen.  Doc. p. 358). It is equally clear that the exemption
is not limited to strictly diplomatic functions, because the phrase "diplomatic function" was
employed in the January 6, 1945 draft of S. 7 (Senate Comparative Print of June 1945, p. 6; Sen.
Doc. p.157) and was discarded in favor of the broader and more generic phrase "foreign affairs
function". In the light of this legislative history, it would seem clear that the exception must be
construed as applicable to most functions of the State Department and to the foreign affairs
functions of any other agency.
"(2) any matter relating to agency management or personnel or to public property, loans,
grants, benefits, or contracts". The exemption for matters relating to "agency management or
personnel" is self-explanatory and has been considered in the discussion of "internal management"
under section 3. The exemption of "any matter relating * * * to public property, loans, grants,
benefits, or contracts" is intended generally to cover the "proprietary" functions of the Federal
Government. 92 Cong. Rec. 5650 (Sen. Doc. p. 358). It will be helpful to consider the
implication of each of these phrases separately.
Public Property. This embraces rules issued by any agency with respect to real or
personal property owned by the United States or by any agency of the United States. Thus, the
making of rules relating to the public domain, i.e., the sale or lease of public lands or of mineral,
timber or grazing rights in such lands, is exempt from the requirements of section 4. The
exemption extends, for example, to rules issued by the Tennessee Valley Authority in relation to
the management of its properties, and by the Maritime Commission with respect to ships owned
by the United States. The term "public property" includes property held by the United States in
trust or as guardian; e.g., Indian property. H.R. Rep. p. 23 (Sen. Doc. p. 257).
Loans. This exempts rules issued with respect to loans by such agencies as the
Reconstruction Finance Corporation, the Commodity Credit Corporation, and the Farm Credit
Administration. It also exempts rules relating to guarantees of loans, such as are made by the
Federal Housing Authority and the Veterans Administration, since they are matters relating to
Grants. Rule making with respect to subsidy programs is exempted from section 4.
"Grants" also include grant-in-aid programs under which the Federal Government makes
payments to state and local governments with respect to highways, airports,  unemployment
Benefits. This refers to such programs as veterans' pensions and old-age insurance
Contracts. All rules relating to public contracts are exempt from section 4. The exemption
extends to wage determinations made by the Labor Department under the Davis Bacon Act (40
U.S.C. 276a et seq.) and the Walsh Healey Act (41 U.S.C. 35-45), as conditions to construction
and procurement contracts entered into by the Federal Government. See Perkins v. Lukens Steel
Co., 310 U. S. 113 (1940).
SECTION 4 (a)--NOTICE
Subsections (a) and (b) of section 4 must be read together because the procedural
requirements of subsection (b) apply only where notice is required by subsection (a). It is clear
that the requirements of "general notice of proposed rule making" apply only to rule making
proposed or initiated by an agency; the filing of a petition under section 4 (d) does not require an
agency to undertake rule making proceedings in accordance with subsections (a) and (b). H.R.
Rep. p. 26 (Sen. Doc. p. 260).
An agency contemplating the issuance of a rule subject to section 4 (a) must publish in the
Federal Register a notice of the proposed rule making, "unless all persons subject thereto are
named and either personally served or otherwise have actual notice thereof in accordance with
law". The reason for the quoted exception is to avoid burdening the Federal Register with notices
addressed to particular parties who have been personally served or otherwise have notice. H.R.
Rep. p. 51, fn. 8 (Sen. Doc. p. 285). For example, where a proceeding is commenced to establish
rates for named carriers or utilities, if a notice complying with section 4 (a) is personally served
upon such persons, publication in the Federal Register is not required by the subsection.
Contents of notice. In both formal(1) and informal rule making, the required notice, whether
published in the Federal Register or personally served, must include the following information:
1. "A statement of the time, place, and nature of public rule making proceedings".
While section 4 (a) does not specify how much notice must be given by an agency before it may
conduct public rule making proceedings, it is presumed that each agency  will give reasonable
In this connection, each agency should take into account the fact that section 4 (c)
provides that thirty days must ordinarily elapse prior to a rule becoming effective. Accordingly,
each agency should schedule its rule making in such fashion that there will be sufficient time for
affording interested persons an opportunity to participate in the rule making as well as for insuring
final publication of the rule at least thirty days prior to the desired effective date.
The nature of public rule making may vary considerably from case to case. Under section
4 (b) each agency, as this memorandum will indicate infra, may conduct its rule making by
affording interested persons opportunity to submit written data only, or by receiving a
combination of written and oral evidence, or by adopting any other method it finds most
appropriate for public participation in the rule making process. However, where an agency is
required by statute to conduct a hearing and to reach a decision upon the basis of the record made
at such hearing, the formal procedures prescribed by sections 7 and 8 must be pursued.
Therefore, the notice, required by section 4 (a) should specify the procedure to be employed, that
is, formal or informal hearings, submission of written statements with or without opportunity for
oral argument, etc.
2. "Reference to the authority under which the rule is proposed". The reference must
be sufficiently precise to apprise interested persons of the agency's legal authority to issue the
3. "Either the terms or substance of the proposed rule or a description of the subjects
and issues involved". Where able to do so, an agency may state the proposed rule itself or the
substance of the rule in the notice required by section 4 (a). On the other hand, the agency, if it
desires, may issue a more general "description of the subjects and issues involved". It is
suggested that each agency consider the desirability of using the latter method if publication of a
proposed rule in full would unduly burden the Federal Register or would in fact be less
informative to the public. In such a case, the agency may inform interested persons that copies of
the proposed rule may be obtained from the agency upon request--this, of course, in addition to
the "description of the subjects and issues involved" in the Federal Register. Where there is a
"description of the subjects and issues  involved", the notice should be sufficiently informative
to assure interested persons an opportunity to participate intelligently in the rule making process.
Final Report, p. 108.
Section 4 (a) and (b) applicable only to substantive rules. The last sentence of section 4
(a) exempts from the requirements of section 4 (a) and (b), unless otherwise required by statute,
"interpretative rules, general statements of policy, rules of agency organization, procedure, or
practice". Thus, the rules of organization and procedure which an agency must publish pursuant,
to section 3 (a) (1) and (2) are not ordinarily subject to the requirements of section 4 (a) and (b).
The further exemption of "interpretative rules" and "general statements of policy" restricts the
application of section 4 (a) and (b) to substantive rules issued pursuant to statutory authority.(3)
See Senate Comparative Print of June 1945, p. 6 (Sen. Doc. p. 19).
Omission of notice and public procedure for good cause. The last sentence of section 4
(a) authorizes any agency to omit the notice required by that subsection (and the procedure
specified by section 4 (b)) "in any situation in which the agency for good cause finds ... that notice
and public procedure thereon are impracticable, unnecessary, or contrary to the public interest".
It should be noted that the reasons for which an agency may dispense with notice under section 4
(a) are written in the alternative so that if it is "impracticable" or "unnecessary" or "contrary to the
public interest" the agency may dispense with notice. Should this be done, the agency must
incorporate in the rule issued its finding of "good cause" and "a brief statement of the reasons
therefor". In general, it may be said that a situation is "impracticable" when an agency finds that
due and timely execution of its functions would be impeded by the notice otherwise required in
section 4 (a). For example, the Civil Aeronautics Board may learn, from an accident
investigation, that certain rules as to air safety should be issued or amended without delay; with
the safety of the traveling public at stake, the Board could find that notice  and public rule
making procedures would be "impracticable", and issue its rules immediately. "Unnecessary"
refers to the issuance of a minor rule or amendment in which the public is not particularly
interested. Senate Hearings (1941) p. 828. "Public interest" connotes a situation in which the
interest of the public would be defeated by any requirement of advance notice. For example, an
agency may contemplate the issuance of financial controls under such circumstances that advance
notice of such rules would tend to defeat their purpose; in such circumstances, the "public
interest" might well justify the omission of notice and public rule making proceedings. Senate
Hearings (1941) p. 812.
SECTION 4 (b)--PROCEDURES
Informal rule making. In every case of proposed informal rule making subject to the
notice requirements of section 4 (a), section 4 (b) provides that "the agency shall afford interested
persons an opportunity to participate in the rule making through submission of written data,
views, or arguments with or without opportunity to present the same orally in any manner." The
quoted language confers discretion upon the agency, except where statutes require "formal" rule
making subject to sections 7 and 8, to designate in each case the procedure for public
participation in rule making. Such informal rule making procedure may take a variety of forms:
informal hearings (with or without a stenographic transcript), conferences, consultation with
industry committees, submission of written views, or any combination of these. These informal
procedures have already been extensively employed by Federal agencies. Final Report, pp.
103-105. In each case, the selection of the procedure to be followed will depend largely upon the
nature of the rules involved. The objective should be to assure informed administrative action and
adequate protection to private interests.
Each agency is affirmatively required to consider "all relevant matter presented" in the
proceeding; it is recommended that all rules issued after such informal proceedings be
accompanied by an express recital that such material has been considered. It is entirely clear,
however, that section 4 (b) does not require the formulation of rules upon the exclusive basis of
any "record" made in informal rule making proceedings. Senate Hearings (1941) p. 444.
Accordingly, except in formal rule making governed by sections 7 and 8, an agency is free to
formulate rules upon the basis of  materials in its files and the knowledge and experience of
the agency, in addition to the materials adduced in public rule making proceedings.
Section 4 (b) provides that upon the completion of public rule making proceedings "after
consideration of all relevant matter presented, the agency shall incorporate in any rules adopted a
concise general statement of their basis and purpose". The required statement will be important in
that the courts and the public may be expected to use such statements in the interpretation of the
agency's rules. The statement is to be "concise" and "general". Except as required by statutes
providing for "formal" rule making procedure, findings of fact and conclusions of law are not
necessary. Nor is there required an elaborate analysis of the rules or of the considerations upon
which the rules were issued. Rather, the statement is intended to advise the public of the general
basis and purpose of the rules.
Formal rule making. Section 4 (b) provides that "Where rules are required by statute to
be made on the record after opportunity  for an agency hearing, the requirements of sections
7 and 8 shall apply in place of the provisions of this subsection." Thus, where a rule is required by
some other statute to be issued on the basis of a record after opportunity for an agency hearing,
the public rule making proceedings must consist of hearing and decision in accordance with
sections 7 and 8. The provisions of section 5 are in no way applicable to rule making. It should be
noted that sections 7 and 8 did not become effective until December 11, 1946, and, pursuant to
section 12, do not apply to any public rule making proceedings initiated prior to that date.
Statutes rarely require hearings prior to the issuance of rules of general applicability. Such
requirements, where they exist, appear in radically different contexts. The Federal Food, Drug
and Cosmetic Act (21 U.S.C. 301) is almost unique in that it specifically provides that agency
action issuing, amending or repealing specified classes of substantive rules may be taken only after
notice and hearing, and that "The Administrator shall base his order only on substantial evidence
of record at the hearing and shall set forth as part of the order detailed findings of fact on which
the order is based." Upon review in a circuit court of appeals, a transcript of the record is filed,
and "the findings of the Administrator as to the facts, if supported by substantial evidence, shall be
conclusive" (21 U.S.C. 371). It is clear that such rules are "required by statute to be made on the
record after opportunity for an agency hearing". Accordingly, the rule making hearings required
by the Federal Food, Drug and Cosmetic Act, initiated on and after December 11, 1946, must be
conducted in accordance with sections 7 and 8 of the Administrative Procedure Act.
Statutes authorizing agencies to prescribe future rates (i.e., rules of either general or
particular applicability) for public utilities and common carriers typically require that such rates be
established only after all opportunity for a hearing before the agency. Such statutes rarely specify
in terms that the agency action musts be taken on the basis of the "record" developed in the
hearing. However, where rates or prices are established by an agency after a hearing required by
statute, the agencies themselves and the courts have long assumed that the agency's action must
be based upon the evidence adduced at the hearing. Sometimes the requirement of decision on
the record is readily inferred from other statutory provisions defining judicial review. For
example, rate orders issued by the Federal Power Commission pursuant to the Natural Gas Act
(15 U.S.C. 717) may be made only after hearing; upon review in a circuit court of appeals or the
Court of Appeals for the District of Columbia, the Commission certifies and files with the court "a
transcript of the record upon which the order complained of was entered", and the Commission's
findings of fact "if supported by substantial evidence, shall be conclusive". It seems clear that
these provisions of the Natural Gas Act must be construed as requiring the Commission to
determine rates "on the record after opportunity for an agency hearing". See H.R. Rep. p. 51, fn.
9 (Sen. Doc. p. 285). The same conclusion would be reached with respect to the determination of
minimum wages under the Fair Labor Standards Act (29 U.S.C. 201), which contains
substantially the same provisions for hearing and judicial review.
The Interstate Commerce Commission and the Secretary of Agriculture may, after
hearing, prescribe rates for carriers and stockyard agencies, respectively. Both types of rate
orders are reviewable under the Urgent Deficiencies Act of 1913 (28 U.S.C. 47). Nothing in the
Interstate Commerce Act, the Packers and Stockyards Act, or the Urgent Deficiencies Act
requires in terms  that such rate orders be "made on the record", or provides for the filing of a
transcript of the administrative record with the reviewing court, or defines the scope of judicial
review. However, both of these agencies and the courts have long assumed that such rate orders
must be based upon the record made in the hearing; furthermore, it has long been the practice
under the Urgent Deficiencies Act to review such orders on the basis of the administrative record
which is submitted to the reviewing court. United States v. Abilene & Southern Ry. Co., 265 U.S.
274 (1924); Mississippi Valley Barge Line Co. v. United States, 292 U.S. 282 (1934); Acker v.
United States, 298 U.S. 426 (1936). It appears, therefore, that rules (as defined in section 2 (c))
which are issued after a hearing required by statute, and which are reviewable under the Urgent
Deficiencies Act on the basis of the evidence adduced at the agency hearing, must be regarded as
"required by statute to be made on the record after opportunity for an agency hearing".
With respect to the types of rule making discussed above, the statutes not only specifically
require the agencies to hold hearings but also, specifically, or by clear implication, or by
established administrative and judicial construction, require such rules to be formulated upon the
basis of the evidentiary record made in the hearing. In these situations, the public rule making
procedures required by section 4 (b) will consist of a hearing conducted in accordance with
sections 7 and 8.
There are other statutes which require agencies to hold hearings before issuing rules, but
contain no language from which the further requirement of decision "on the record" can be
inferred, nor any provision for judicial review on the record (as does the Natural Gas Act, supra).
For example, the Federal Seed Act (7 U.S.C. 1561) simply provides that "prior to the
promulgation of any rule or regulation under this chapter, due notice shall be given by publication
in the Federal Register of intention to promulgate and the time and place of a public hearing to be
held with reference thereto, and no rule or regulation may be promulgated until after such
hearing". See also the so-called Dangerous Cargoes Act (46 U.S.C. 170(9)) and the Tanker Act
(46 U.S.C. 391a (3)) discussed in Senate Hearings (1941) p. 589. In this type of statute, there is
no requirement, express or implied, that rules be formulated "on the record".
There is persuasive legislative history to the effect that the Congress did not intend
sections 7 and 8 to apply to rule making where the substantive statute merely required a hearing.
In 1941, a subcommittee of the Senate Committee on the Judiciary held hearings on S. 674 (77th
Cong., 1st sess.) and other administrative procedure bills. Section 209 (d) of S. 674 provided
with  respect to rule making that "where legislation specifically requires the holding of
hearings prior to the making of rules, formal rule making hearings shall be held". Mr. Ashley
Sellers, testifying on behalf of the Department of Agriculture, called the subcommittee's attention
to the fact that in various statutes, such as the Federal Seed Act, in which the Congress had
required hearings to be held prior to the issuance of rules, the obvious purpose "was simply to
require that the persons interested in the proposed rule should be permitted to express their
views". Mr. Sellers drew a sharp distinction between such hearing requirements and the formal
rule making requirements of the Federal Food, Drug and Cosmetic Act. Senate Hearings (1941)
pp. 78-81, 1515, 1520.(4) Since this situation was thus specifically called to the subcommittee's
attention, it is a legitimate inference that with respect to rule making the present dual requirement,
i.e., "after opportunity for an agency hearing" and "on the record", was intended to avoid the
application of formal procedural requirements in cases where the Congress intended only to
provide an opportunity for the expression of views. See Mr. Carl McFarland's statement in
Senate Hearings (1941) pp. 1343, 1386. See also Pacific States Box & Basket Co. v. White, 296
U.S. 176, 186 (1935).
Publication of procedures. Each agency which will be affected by section 4 should
publish under section 3 (a) (2) the procedures, formal and informal, pursuant to which the public
may participate in the formulation of its rules. The statement of informal rule making procedures
may be couched in either specific or general terms, depending on whether the agency has adopted
a fixed procedure for all its rule making or varies it according to the type of rule to be
promulgated. In the latter instance, it would be sufficient to state that proposed substantive rules
will be adopted after allowing the public to participate in the rule making process either through
submission of written data, oral testimony, etc., the method of participation in each case to be
specified in the published notice in the Federal Register. H.R. Rep. p. 25 (Sen. Doc. p. 259).
SECTION 4 (c)--EFFECTIVE DATES
Section 4 (c) provides that "The required publication or service of any substantive rule
(other than one granting or recog-nizing exemption or relieving restriction or interpretative
rules and statements of policy) shall be made not less than thirty days prior to the effective date
thereof except as otherwise provided by the agency upon good cause found and published with
the rule." This requirement applies regardless of whether the rules are issued after formal or
The discussion on section 4 (c) in the reports of both the Senate and House Committees
on the Judiciary makes clear that the phrase "The required publication or service of any
substantive rule" does not relate back or refer to the publication of "general notice of proposed
rule making" required by section 4 (a); rather it is a requirement that substantive rules which must
be published in the Federal Register (see section 3 (a) (3)) shall be so published at least thirty days
prior to their effective date. Similarly, "rules addressed to and served upon named persons", when
they are substantive in nature, are subject to section 4 (c). The purpose of the time lag required
by section 4 (c) is to "afford persons affected a reasonable time to prepare for the effective date of
a rule or rules or to take any other action which the issuance of rules may prompt". Sen. Rep. p.
15; H.R. Rep. p. 25 (Sen. Doc. pp. 201, 259).
It is possible that section 4 (c) will be interpreted as amending the Federal Register Act so
as to require, with respect to rules subject to section 4 (c), actual publication in the Federal
Register (or service) at least thirty days prior to their effective date, rather than the mere filing of
such rules with the Division of the Federal Register as heretofore. In any. event, section 4 (c)
applies only to such substantive rules as are not excepted from all the provisions of section 4 by
its introductory clause or by section 2 (a) of the Act. It is clear, for example, that the effective
date of rules issued within the scope of the functions exempted from all of the requirements of
section 4 by the introductory clause of that section, will continue to be governed by section 7 of
the Federal Register Act (44 U.S.C. 307), rather than by section 4 (c) of the Administrative
Procedure Act. Thus, where an agency issues rules relating to public property, such rules may be
made effective upon filing with the Division of the Federal Register.
Also, section 7 of the Federal Register Act is not superseded in so far as there are involved
rules granting or recognizing exemption or relieving restriction or interpretative rules and
statements of policy. Thus, there still may be made effective upon filing with the Division of the
Federal Register statements of policy  and interpretative rules. Likewise excepted from the
thirty-day requirement of section 4 (c) are rules "granting or recognizing exemption or relieving
restriction". For example, if a statute prohibits the doing of an act without prior agency approval
and such approval falls within the definition of "rule" in section 2 (c), the action of the agency in
approving such act, i.e., removing the restriction or providing an exemption, may be made
effective without regard to the thirty-day requirement. Senate Hearings (1941) p. 1296. Also,
the relaxation of a restrictive rule by an amendment, or the repeal of such a rule, would seem to
be within the scope of the exception. The reason for this exception would appear to be that the
persons affected by such rules are benefited by them and therefore need no time to conform their
conduct so as to avoid the legal consequences of violation. The fact that an interested person may
object to such issuance, amendment, or repeal of a rule does not change the character of the rule
as being one "granting, or recognizing exemption or relieving restriction", thereby exempting it
from the thirty-day requirement.
The requirement of publication not less than thirty days prior to the effective date may be
shortened by an agency "upon good cause found and published with the rule". This discretionary
exception was provided primarily to take care of the cases in which the public interest requires the
agency to act immediately or within a period less than thirty days. Senate Hearings (1941) pp. 70,
441, 588, 650, 812, 1506. Where the persons concerned request that a rule be made effective
within a shorter period, this circumstance would ordinarily constitute good cause. Also, it is clear
from the legislative history that for good cause an agency may put a substantive rule into effect
immediately; in such event, the requirement of prior publication is altogether absent, and the rule
will become effective upon issuance as to persons with actual notice, and as to others upon filing
with the Division of the Federal Register in accordance with section 7 of the Federal Register Act.
Senate Hearings (1941) pp. 594, 599, 1340, 1455. Nothing in the Act precludes the issuance of
retroactive rules when otherwise legal and accompanied by the finding required by section 4 (c).
H.R. Rep. p. 49, fn. 1 (Sen. Doc. p. 283).
Where an agency, pursuant to the last clause of section 4 (a), omits the procedures of
section 4 (a) and (b) because "notice and public procedure thereon are impracticable, unnecessary
or contrary to the public interest", subsection (c) does not thereby  become automatically
inoperative. If the situation is such as to compel the agency, in addition, to dispense with the
thirty-day provision, the rule should also contain the finding required by the last clause of section
Section 4 (c) is not intended to repeal provisions of other statutes which require a period
of longer than thirty days between the issuance and effective date of certain rules. For example,
the Cotton Standards Act authorizes the Secretary of Agriculture to set cotton classification
standards which may not become effective in less than one year (7 U.S.C. 56). The thirty-day
period prescribed by section 4 (c) of the Administrative Procedure Act does not supersede the
one-year period thus required by the Cotton Standards Act.
SECTION 4 (d)--PETITIONS
Section 4 (d) provides that "Every agency shall accord any interested person the right to
petition for the issuance, amendment, or repeal of a rule." Section 4 (d) applies not only to
substantive rules but also to interpretations and statements of general policy, and to organizational
and procedural rules. It is applicable both to existing rules and to proposed or tentative rules.
The right to petition under section 4 (d) must be accorded to any "interested person". It
will be proper for an agency to limit this right to persons whose interests are or will be affected by
the issuance, amendment or repeal of a rule.
Every agency with rule making powers subject to section 4 should establish, and publish
under section 3 (a) (2), procedural rules governing the receipt, consideration and disposition of
petitions filed pursuant to section 4 (d). These procedural rules may call, for example, for a
statement of the rule making action which the petitioner seeks, together with any data available in
support of his petition, a declaration of the petitioner's interest in the proposed action, and
compliance with reasonable formal requirements.
If the agency is inclined to grant the petition, the nature of the proposed rule would
determine whether public rule making proceedings under section 4 (a) and (b) are required.
However, the mere filing of a petition does not require the agency to grant it or to hold a hearing
or to engage in any other public rule making proceedings. For example, under section 701(e) of
the  Federal Food, Drug and Cosmetic Act (21 U.S.C. 371 (e)), the Federal Security
Administrator must provide a hearing on a proposed rule only where an application, stating
reasonable grounds, is made by an interested industry or a substantial portion of the industry.
Section 4 (d) was not intended to modify that statute so as to require the Federal Security
Administrator to hold a hearing on the petition of a single individual.
The agency need act on the petition only in accordance with its procedures as published in
compliance with section 3 (a) (2). The denial of a petition is governed by section 6 (d). Sen.
Rep. p. 15; H.R. Rep. p. 26 (Sen. Doc. pp. 201, 260). Accordingly, prompt notice of such denial
should be given to the petitioner, together with a simple statement of the procedural or other
Neither the denial of a petition under section 4 (d), nor an agency's refusal to hold public
rule making proceedings thereon, is subject to judicial review. Sen. Rep. p. 44 (Sen. Doc. p.
This subsection (as in the case of the preceding portions of section 4) does not apply to
rules relating to the functions and matters enumerated in the first sentence of section 4. The
reports of the Senate and House Committees on the Judiciary state that "The introductory clause
exempts from all of the requirements of section 4 any rule making so far as there are involved (1)
military, naval, or foreign affairs functions or (2) matters relating to agency management or
personnel or to public property, loans, grants, benefits, or contracts." (Underscoring supplied).
Sen. Rep. p. 13; H.R. Rep. p. 23 (Sen. Doc. pp. 199, 257). The petition procedure of section 4
(d) is not applicable, for example, to the rules which an agency has issued or is empowered to
issue with respect to loans or pensions.
1. As used here, "formal" rule making means those public rule making proceedings which
must be conducted in accordance with sections 7 and 8.
2. See section 8 of the Federal Register Act (44 U.S.C. 308) for a general statutory standard
of reasonable notice.
3. In this connection, the following working definitions are offered: Substantive rules--rules, other than organizational or procedural under section 3 (a) (1) and (2), issued by an agency
pursuant to statutory authority and which implement the statute, as, for example, the proxy rules
issued by the Securities and Exchange Commission pursuant to section 14 of the Securities
Exchange Act of 1934 (15 U.S.C. 78 n). Such rules have the force and effect of law.
Interpretative rule--rules or statements issued by an agency to advise the public of the agency's
construction of the statutes and rules which it administers. See Final Report. p. 27; Senate
Comparative Print of June 1945, p. 6 (Sen. Doc. p. 18); Senate Hearings (1941) p. 330.
General statements of policy--statements issued by an agency to advise the public prospectively
of the manner in which the agency proposes to exercise a discretionary power.
4. See, also, the statement of Acting Attorney General Biddle citing examples of "statutes
which require hearings as a part of the rule making procedure without imposing a requirement of
formal adversary judicial methods". Senate Hearings (1941) p. 1468.
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