SSS should solicit comments Time limit for the return of forms which must be completed by the registrant should be expanded from 10 to 30 days. Window envelopes introduced 1. National public information Military Selective Service Act as 80-620-72-2 Disposition Directives have been issued Records of most registrants over 36. Economies available ment of records Mr. WALTER H. MORSE, DEPARTMENT OF JUSTICE, Washington, D.C., February 23, 1972. General Counsel, Selective Service System, Washington, D.C. DEAR Mr. MORSE: This is in response to your request for my views on whether the pre-publication requirement in Section 13 (b) of the Military Selective Service Act, as amended, applies only to Selective Service Regulations or also applies to "all directives that have a significant impact on registrants, incuding LBM's and LASD's." 2 You have indicated to me your own view that this requirement applies only to Selective Service Regulations, and have furnished me with copies of the System's letter to Senator Kennedy of December 22, 1971 expressing this view and of the debates in the Senate on June 17, 1973 3 on the proposed amendment of Section 13 (b) which In my opinion. and as will appear below from the plain language of the provision, its legislative history, and a long and well-known administrative interpretation of the terms involved, the pre-publication requirement of Section 13(b) of the Military Selective Service Act applies in general only to Selective Service Regulations. Except to the very limited extent noted hereinafter, this requirement is inapplicable to internal communications within the Selective Service System such as LBM's, LASD's, and other messages issued by System headquarters or other parts of the System for the purpose of carrying on and managing System operations. Before considering whether Section 13 (b) applies to System materials other than the Regulations, some review is in order of the historic and fundamental differences between the Regulations and these other materials. The general distinction between Selective Service Regulations and various internal System communications such as LBM's and LASD's has long been known to most persons who are knowledgeable about selective service affairs. For a generation, Selective Service Regulations have been published in the Code of Federal Regulations as Title 32, Chapter XVI, and until just a few months ago amendments to these Regulations were almost always issued by the President.4 The other materials in question are not so codified and have never been issued by the President. Moreover, Selective Service Regulations generally have the force of law and are binding upon private persons according to their terms, while internal System communications such as LBM's and LASD's may be advisory or informational as well as imperative in function, and even if imperative they are generally intended to be binding only upon those elements of the System to which they are addressed, and only to the extent they do not conflict with a Regulation. Furthermore, examination of the subject and structure of the more than two dozen Parts of the Selective Service Regulations makes it clear that the Regulations contain a mass of substantive and procedural provisions 1 P.L. 92-129, approved Sept. 28, 1971, sec. 101 (a) (32), 85 Stat. 353, 50 U.S. Code App. secs. 451 et seq. The quoted phrase is from a letter dated December 10, 1971 from Senator Kennedy to Selective Service Director Tarr expressing the view that all such directives are within the pre-publication requirement of Section 13(b) of the Act. The term LBM means Local Board Memorandum; LASD means Letter to All State Directors. * Cong. Rec. pages S 9355 through S 9360. added this pre-publication requirement to the law. 4 See Executive Order No. 11623 of October 12, 1971, 36 Fed. Reg. 19963 of Oct. 14, 1971, which broadly delegated to the Director of the System, subject to prescribed procedures, the President's authority to issue Selective Service Regulations. Prior to this action last October, and at the time the pre-publication provision in Section 13(b) of the Act was passed, the Director had been delegated only a very limited amount of authority to issue such Regulations, but was not inhibited in issuing LBM's, LASD's, etc. on his own authority, except of course to the extent such an internal communication might be inconsistent with the Regulations and other sources of law. Thus, in the world of selective service, the word "regulations" can generally be regarded as meaning the kind of materials that were issued by the President rather than by the Director, or under the very limited Presidential authority to issue regulations long delegated to the Director, until the time some weeks after the pre publication amendment to Sec. 13(b) was passed when Executive Order 11623 was issued. representing an exercise of authority delegated by Congress in the statute." Such authority goes beyond the minimal basic authority, usually characterized as executive, administrative, managerial or ministerial, that is needed to run any organization and to carry out any organizational mission. The mass of substantive and procedural material binding upon private persons which is contained in Selective Service Regulations is generally similar in its governmental function to the substantive and procedural provisions issued by other federal agencies under other acts of Congress. In other words, Selective Service Regulations, like other agency regulations, represent an exercise of delegated rulemaking authority needed to implement the general terms, objectives and norms of a particular statute. Such implementing pro visions, issued by an agency to flesh out the scheme of a statute entrusted to its administration, have long been called "regulations" in federal usage; Selective Service Regulations are consistent with that usage. It should be evident that regulations of the kinds just mentioned are generally, if not absolutely, quite distinct from the mass of internal agency communications (whether called bulletins, departmental orders, circular letters, staff memorandums, etc.) by which the day-to-day operations of a federal agency must be coordinated and controlled, particularly if the agency has a sizable and far-flung field organization like that of the System. So much for the general historical and functional distinctions between the Regulations and the other materials involved. One further matter warrants preliminary comment and clarification, namely, the precise nature of the question at hand. The question before me is not whether various internal System directives should be published or otherwise made available to the public once they are issued. In that regard I would assume the System follows the requirements of law providing for the public availability of agency records to the extent such laws apply to the particular paper. The question here is whether your agency can transmit to another part of the System any internal directive which is effective according to its terms and which may significantly impinge upon registrants, unless the directive has first been published as a contemplated directive for a period of 30 days before such transmittal. The implications of this question should be considered in weighing the answer to be given. If the answer is to be negative that these internal directives cannot be effectively issued without pre-publication-then the prepublication requirement presumably would cover, for example, an internal System instruction to suspend immediately certain inductions, a directive to request additional information from certain registrants, or presumably almost any internal order of importance to the operation of the System. This last seems fairly clear: since the System's entire existence is oriented toward the effects of its work upon registrants, any System activity of any importance is likely to have some significant impact upon registrants, even if only indirectly. If all internal directives of importance must be pre-published 30 days before they can go into effect, the System will apparently be forced to labor under a series of repeated obstacles in the conduct of its operationsobstacles consisting of delays of 30 days each at almost every separate step in such operations which may occasion some kind of order. Such a requirement would seem unique; it is not imposed even upon those federal departments and agencies that are wholly subject to the Administrative Procedure Act. Congress, however, has continued the System's exemption from most of the Administrative Procedure Act. Therefore, the pre-publication provisions of Section 13 (b) should not be read expansively to impose upon See, eg.. Part 1611, Duty to Register; Part 1613, Registration Procedures; Part 1622, Classification Rules and Principles; Part 1623, Classification Procedures; Part 1624, Appearance before Local Board; Part 1625, Reopening Registrant's Classification; Part 1626, Appeal to Appeal Board; Part 1628, Physical Examination; Part 1631, Quotas and Calls. Cf. 5 U.S.C. 552. the System a requirement far beyond what the Administrative Procedure Act would call for, and far more restrictive upon the System's ability to operate, unless the arguments for so reading Section 13 (b) are very strong. In fact, the contrary is the case; under accepted principles of statutory interpretation, the 30-day pre-publication requirement of Section 13(b) applies in general only to Selective Service Regulations. The statutory language is plain and unambiguous. Section 13 (b) of the Act, prior to its amendment last September by Public Law 92-129, merely exempted the System from all parts of the Administrative Procedure Act except Section 3 thereof, the public information section. The statutory language here involved, an amendment to Section 13 (b) added by Public Law 92-129, is as follows: (32) Section 13 (b) is amended by adding at the end thereof the following: Notwithstanding the foregoing sentence, no regulation issued under this Act shall become effective until the expiration of thirty days following the date on which such regulation has been published in the Federal Register. After the publication of any regulation and prior to the date on which such regulation becomes effective, any person shall be given an opportunity to submit his views to the Director on such regulation, but no formal hearing shall be required on any such regulation. The requirements of this subsection may be waived by the President in the case of any regulation if he (1) determines that compliance with such requirements would materially impair the national defense, and (2) gives public notice to that effect at the time such regulation is issued." (Emphasis supplied.) This language is quite clear; the word "regulation" is used eight times; it is not conjoined even once with any other arguably similar or broader term; and this choice of words may be contrasted with Section 10(b) of the same statute, which has long provided and still provides that the President may prescribe the necessary "rules and regulations" to carry out the Act. If in the face of this clear statutory language recourse to the legislative history is thought necessary, it is to the same effect. The amendment in question was added on the Senate floor on June 17, 1972, and the only significant history is the Senate debate on the amendment. During that debate, Senator Kennedy, who sponsored this amendment, agreed with Senator Stennis that the amendment "is addressed *** to regulations that the Director of Selective Service is authorized under this law to issue, and, of course, that means they must be issued with the approval of the President of the United States or his direct representative" (emphasis supplied). As herein before noted, Selective Service Regulations at that time were generally issued by Executive Order, in contrast to the internal System materials which the Director has long issued on his own authority. In a further exchange during the debate, both Senators agreed on some illustrations of these regulations, including regulations defining the scope of the conscientious objector classification in the light of Supreme Court decisions, regulations prescribing the relative status of particular age groups or classes of registrants under the lottery or random selection system, and regulations on deferment of registrants married after a certain date. Senator Kennedy added that his amendment would cover "any regulations that are going to affect those who will be selected and those who will not * eligibility for being taken and ✶✶ ✶ ineligibility ***". Senator McIntire, a cosponsor of the amendment, clearly recognized the distinction between Selective Service Regulations and LBM's, saying Another area which has troubled me is that after Selective Service regulations are issued, within a short period of time, the Selective Service System's National Headquarters issues a local board memorandum which further explains the regulation and fills in some of the gaps. This is an important The Conference Report, House Report No. 92-433 of July 30, 1971, is the only committee report referring to the amendment of Section 13(b), and it merely says, at page 29, that the House conferees accepted the amendment "in the interest of equity". |