Nowhere Will You Find Any Requirement To Publish A "Notice Of Intent"

by Joseph P. Whalen

Even though it is not required, it is allowed that federal agencies may publish a wide variety of notices about pre-rule activities or information collections etcetera. The formal Notice of Intent (NOI) recently submitted by DHS about USCIS' proposed procedural changes regarding certain I-601 Waiver Applications was something new, at least for USCIS. This NOI appears to be an easily identifiable and clearly expressed statement of "Executive Intent" on an issue. Furthermore, this type of procedural change is among the actions specifically exempted from any advance notice. See 5 USC § 553 (excerpt below).

The primary source of official Executive Intent is the specific rule(s) within the Code of Federal Regulations (CFR). Agencies also create and publish Policy and Procedural manuals and memoranda as guidance for their employees. They may even publish practice advisories, technical assistance letters, or legal opinions of its counsel for customers and the practitioners before them. In addition to the aforementioned items, there is another, oft-overlooked source of Executive Intent. The importance of the explanatory material and background discussion included in a rule's supplementary information and background portions of the FR notices as well as the public comments and official responses to them is that this material can have binding effect as a published official interpretation.

The BIA has spoken on numerous occasions on the issue of Executive Intent. For instance in Matter of F-P-R-, 24 I&N Dec. 681, 683 (BIA 2008) the BIA stated:

"Accordingly, in ascertaining executive intent, we look to the ordinary meaning of the words used in the regulation. Cf. Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991, 993 (BIA 1999) (citing INS v. Phinpathya, 464 U.S. 183, 189 (1984))."

I could not find any specific references to this type of Notice in the APA or CFR. However, agencies sometimes note that when they issue a Direct Final Rule (DFR) they generally reserve the right to withdraw the DFR if they get a serious challenge. Such "serious challenge" is sometimes described as a "notice of intent" to file an adverse comment. In the small excerpts from a rule shown below, the other indication of how the agency will convey its actual intent behind the rule is to provide a point of contact so that an individual can make an inquiry. That may satisfy that one individual but it won't go far in a legal challenge.

14 CFR § 11.13 What is a direct final rule?

A direct final rule is a type of final rule with request for comments. Our reason for issuing a direct final rule without an NPRM is that we would not expect to receive any adverse comments, and so an NPRM is unnecessary. However, to be certain that we are correct, we set the comment period to end before the effective date. If we receive an adverse comment or notice of intent to file an adverse comment, we then withdraw the final rule before it becomes effective and may issue an NPRM.

14 CFR § 11.40 Can I get more information about a rulemaking?

You can contact the person listed under FOR FURTHER INFORMATION CONTACT in the preamble of a rule. That person can explain the meaning and intent of a proposed rule, the technical aspects of a document, the terminology in a document, and can tell you our published schedule for the rulemaking process. We cannot give you information that is not already available to other members of the public. Department of Transportation policy on oral communications with the public during rulemaking appears in appendix 1 of this part.

TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES PART I--THE AGENCIES GENERALLY CHAPTER 5--ADMINISTRATIVE PROCEDURE SUBCHAPTER II--ADMINISTRATIVE PROCEDURE

Sec. 553. Rule making

Notice and Comment Rulemaking is Derived (in part) from:

(b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include--

1. a statement of the time, place, and nature of public rule making proceedings;
2. reference to the legal authority under which the rule is proposed; and
3. either the terms or substance of the proposed rule or a description of the subjects and issues involved.

Direct Final Rule Authority is Derived (in part) from:

Except when notice or hearing is required by statute, this subsection does not apply--

1. to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or
2. when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.

Notice and Comment Rulemaking is Derived (in part) from:

(c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection.

Direct Final Rule Authority is Derived (in part) from:

(d) The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except--

1. a substantive rule which grants or recognizes an exemption or relieves a restriction;
2. interpretative rules and statements of policy; or
3. as otherwise provided by the agency for good cause found and published with the rule.

The Right to "Petition for Rulemaking" Derives from:

(e) Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.

The following question and answer comes from: http://www.reginfo.gov/public/jsp/Utilities/faq.jsp

Q. What are the different types of significant regulatory actions currently displayed on the dashboard that undergo OIRA review? A.

They are:

• Notice - These are documents that announce new programs (such as grant programs) or agency policies.
• Pre-rule (or advance notice of proposed rulemaking) - Agencies undertake this type of action to solicit public comment on whether or not, or how best, to initiate a rulemaking. Such actions occur prior to the proposed rule stage.
• Proposed rule - This is the rulemaking stage in which an agency proposes to add to or change its existing regulations and solicits public comment on this proposal.
• Final rule - This is the last step of the rulemaking process in which the agency responds to public comment on the proposed rule and makes appropriate revisions before publishing the final rule in the Federal Register to become effective.
• Interim Final Rule - These interim rules are typically issued in conformity with statutory provisions allowing agencies to publish a final rule that becomes effective soon after publication, without going through the proposed rule stage. The "good cause" exception in the Administrative Procedure Act allows agencies to bypass public notice and comment on a rule when it would be impracticable, unnecessary, or contrary to the public interest. This process typically allows for public comment after the rule is published so that the agency still has an opportunity to consider public input and revise the rule accordingly.
• Direct Final Rule - These rules are similar to interim final rules, except that there is no comment period after publication, on the ground that they are uncontroversial. Such rules are categorized simply as "final rules" for display purposes on the dashboard.

It appears that DHS on behalf of USCIS is making a clear statement of Executive Intent on the purpose, applicability, and policy behind its proposed procedural change. Various commentators (for and against) this intended change would otherwise read "hidden motives" into it. This statement of Executive Intent will still be challenged and twisted out of shape. Advocates will be seeking even more, and detractors will still see sinister ulterior motives. The crucial difference that this clear statement will make, will be realized in legal challenges that come later. Such challenges will still come but they will not stand up to scrutiny.

About The Author

Joseph P. Whalen Is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.

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