Legal Memorandum: Agency's Substantive or Legislative Rules

Issue: How is a permit’s validity affected, if at all, where it is made retroactive to the filing date of the application, when agency regulations mandate that the effective date be the issuance date?

Area of Law: Administrative Law, Administrative Law & Regulation (Federal and State)
Keywords: Agency's substantive rules; Bound by rules; Validity of permit
Jurisdiction: Federal
Cited Cases: 704 A.2d 1261
Cited Statutes: None
Date: 11/01/2009

The general rule is that an agency’s substantive or “legislative” rules or regulations have the force and effect of law.  See, e.g., Chrysler Corp. v. Brown, 441 U.S. 281, 295 (1979) (“It has been established in a variety of contexts that properly promulgated, substantive regulations have the force and effect of law.”);  Armstrong v. Ramos, 74 F. Supp. 2d 142, 149 (D.P.R. 1999) (“Legislative regulations are issued by an agency pursuant to a statutory delegation and implement the statute; these regulations have the force and effect of law.”); McMillan v. McKune, 135 P.3d 1258, 1262-63 (Kan. Ct. App. 2006) (“Rules and regulations adopted by an administrative board to carry out the policy declared by the legislature in the statutes have the force and effect of laws.”).

An agency is not free to disregard its own legislative rules but is bound by them. Rotinsulu v. Mukasey, 515 F.3d 68, 72 (1st Cir. 2008) (“An agency has an obligation to abide by its own regulations.”); Nelson v. I.N.S., 232 F.3d 258, 262 (1st Cir. 2000) (an agency has a duty to follow its own regulations, even when regulations provide greater protection than constitutionally required); In re CAFRA Permit No. 87-0959-5, 704 A.2d 1261, 1270-71 (N.J. 1997) (collecting cases that acknowledge that agencies are bound by their own substantive rules).  Indeed, the failure of an administrative agency to follow its own rules may constitute a constitutional violation of the due process guarantee.  Marshall v. Lansing, 839 F.2d 933, […]

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