              Agency Rules as Constraints on the Exercise
                 of an Agency’s Statutory Discretion
When an agency exercises discretion vested in it by statute by issuing a rule, the rule assumes the
  force and effect of law, and must be followed by the agency until it is amended or revoked.
  This principle applies notwithstanding an amendment to the authorizing statute affording
  greater discretion to the agency than is reflected in the existing rule.

When a statute grants discretion to an agency, the agency is usually free to exercise that discretion on
  a case-by-case basis, rather than through the adoption of general rules, unless either the statute
■ itself or the requirements of due process make the adoption of general rules mandatory.

                                                                                    March 4, 1983

               M   em orandum        O p in io n   for th e   G eneral C oun sel,
               D   epa rtm en t o f   H o u s in g   and   U rban D ev elopm en t


   This responds to your request for advice regarding the effect of an agency’s
rules as a constraint upon, and a condition for, the exercise of authority
conferred by statute. Your specific inquiry is whether a particular rule provid­
ing ceilings on insured federal mortgages must be amended before new statu­
tory authority may be exercised. Your general inquiry is whether an agency is
under any broad obligation to issue rules before taking action pursuant to a
grant of statutory authority.
   We discuss the specific issue in Part I below, and the general question in Part
II. With regard to your specific inquiry, we believe that the Secretary of
Housing and Urban Development (HUD) should amend the existing mortgage
insurance rule establishing a ceiling on insured mortgages before exceeding the
ceiling stated in the rule. The former Secretary of HUD exercised discretion by
promulgating the existing rule creating a ceiling on insured mortgages (which
ceiling corresponded to the old statutory ceiling). If the present Secretary
wishes to exercise his discretion to approve larger mortgages, he can do so up
to the limits of the new statutory authority. Before doing so, however, he should
first amend the existing rule. There are, of course, statutory grounds for expediting
such a rulemaking process so that the process of bringing the rule into line with
the new statutory ceiling on insured mortgages should not be inordinately time
consuming or disruptive of agency policymaking. See 5 U.S.C. § 553.
   In response to your general question, we explain in Part II the basic factors to
be taken into account by an agency in determining whether to issue rules
pursuant to statutory authority. We must stress, however, that it is difficult to
                                                     39
give reliable guidance about such a broad subject, which must be approached
on a case-by-case basis in light of the governing law.

                     I. The Status o f Existing Rules as a Constraint
                              on the Secretary’s Discretion

   Your specific inquiry involves the Secretary’s authority relating to federal
mortgage insurance. In pertinent part, the relevant statute provided (until
recently amended):
          To be eligible for insurance under this section a mortgage on
          any property or project shall involve a principal obligation in an
          amount —
                                                     * * $

          (3) Not to exceed, for such part of the property or project as may
          be attributable to dwelling use . . . $19,500 per family unit
          without a bedroom, $21,600 per family unit with one bedroom,
          $25,800 per family unit with two bedrooms, $31,800 per family
          unit with three bedrooms, and $36,000 per family unit with four
          or more bedrooms,. . . except that the Secretary may, by regula­
          tion, increase any of the foregoing dollar amount limitations
          contained in this paragraph by not to exceed 75 per centum in
          any geographical area where he finds that cost levels so re­
          quire, except that, where the Secretary determines it necessary
          on a project by project basis, the foregoing dollar amount
          limitations contained in this paragraph may be exceeded by not
          to exceed 90 per centum in such area. . ..
12 U.S.C. § 1713(c)(3) (Supp. V 1981) (emphasis added). See Pub. L. No.
96153, §314, 93 Stat. 1101, 1117 (1979) (the “Housing and Community
Development Amendments of 1979”). To recapitulate, under the foregoing
authority the Secretary “may, by regulation,” exceed the stated dollar amount
limitations by up to 75 percent in a high-cost area. In addition, on a project-by-
project basis, he may exceed the limitations by up to 90 percent.
   Pursuant to this authority, on January 21, 1980, HUD published a final rule
in the Federal Register to amend then existing rules.1 The effect of the final
rule, as explained in the agency’s summary, was:
          to increase from 50 percent to 75 percent the maximum percent­
          age by which mortgage amount limitations may be increased in
          high cost areas. In addition, this rule adds a provision to each of
          those sections permitting the [Federal Housing] Commissioner,
          on a case-by-case basis, to increase the mortgage amount limita­
          tions by up to 90 percent.
  1 H U D ’s rulem aking authority in this co n te x t derives from 12 U.S.C. § 1715b, which provides that the
“S ecretary is authorized and directed to m ake such rules and regulations as may be necessary to carry out the
pro v isio n s o f this subchapter.” That subchapter deals with federal m ortgage insurance.

                                                    40
45 Fed. Reg. 3903 (1980) (emphasis added). In the “supplementary informa­
tion” furnished regarding the rule, HUD noted that the statute provided that the
Secretary “may” increase mortgage amounts up to certain new statutory limits,
and that the final rule “implements the statutory change by making parallel
revisions in the regulations governing the affected mortgage insurance pro­
grams.” Id. In explaining the reasons for proceeding directly with final
rulemaking, rather than issuing a notice of proposed rulemaking and inviting
public comments, HUD stated:
             The Secretary has determined that, in light of the current
          economic situation, it is urgent that the benefits afforded by
          these amendments be made available as soon as possible. Pub­
          lishing a notice of proposed rulemaking and giving the public an
          opportunity to comment on these amendments would cause a
          substantial delay in making the benefits available. Therefore,
          the Secretary finds that notice and public procedure on these
          amendments would be contrary to the public interest. Since
          these amendments relieve restrictions contained in the present
          regulations, it is not necessary to delay the effective date of
          these amendments for the 30 day period provided in 5 U.S.C.
          553(d).
Id. (emphasis added). Accordingly, HUD’s explanation accompanying the
final rule makes plain that, in the agency’s view, the 1980 amendment was
necessary to “relieve” existing regulatory restrictions, and such relief was
required immediately.2
   More recently, in the continuing resolution making appropriations for FY
1983, adopted in December 1982, the 97th Congress amended the underlying
statute. As amended, the statute provides that, in certain circumstances on a
project-by-project basis, the stated dollar limits may be exceeded by 140
percent, rather than by 90 percent as previously allowed.3 You have asked
whether it is now necessary for HUD once again to amend its rule, which
presently does not provide for mortgages that exceed the stated project by
project limit by more than 90 percent, before the Secretary may authorize
mortgages on a project by project basis up to 140 percent.


   2 As published in the C ode o f Federal R egulations, the rule provides.
         In any geographical area where the C om m issioner finds that cost levels so require, the
       C om m issioner may increase, by not to exceed 75 percent, the dollar amount lim itations set forth
       in paragraphs (a)(2) and (b) o f this section. In such high cost areas, where the C om m issioner
       determ ines it necessary on a project-by-project basis, the C om m issioner may increase these
       dollar am ount lim itations by not to exceed 90 percent.
24 C.F.R. § 207.4(c)(1) (em phasis added).
   3 The pertinent language is contained in Senate A mendment 32 to H.R.J. Res No. 631, 128 C ong. Rec.
31324 (1982), w hich inserted after “90 per centum " in 12 U S.C. § 1713(c)(3) the follow ing parenthetical
p hrase' “(by not to exceed 140 per centum where the Secretary determ ines that a m ortgage other than one
purchased or to be purchased under section 305 o f this title by the G overnm ent National M ortgage A ssocia­
tion in im plem enting its special assistance functions is involved)."

                                                     41
   The statute in question does not impose a specific, self-executing and man­
datory limit on insured mortgages. Instead, it provides authority and discretion
for the Secretary to allow mortgages up to a stated limit; thus, under the statute
as amended, the Secretary has authority and discretion to set a figure for
mortgages below the upper limit.4 In short, the Secretary has the discretion to
determine what the limit actually will be. In this case, a determination has been
made and embodied in the existing rule, providing that insured mortgages
under the provision shall not in any event exceed 90 percent of the stated
amounts. This rule acts as a separate constraint on the Secretary’s discretion.
Unless the Secretary changes the rule to make it conform with the new statute
(which he has authority to do), any mortgage above the regulatory ceiling
would violate the agency’s own rule, although not the statute itself.
   The applicable legal precept here is that when an agency exercises statutory
discretion by issuing a rule, the rule assumes the force and effect of law, and
must be followed by the agency until it is changed by some subsequent exercise
of discretion. This precept has been expressed in unmistakable terms by the
courts.
   One of the leading cases is United States v. Nixon, 418 U.S. 683, 694—96
(1974), which involved a regulation issued by the Attorney General that
conferred on a Special Prosecutor the power to contest the invocation of
executive privilege. The Court stated:
          [I]t is theoretically possible for the Attorney General to amend
          or revoke the regulation defining the Special Prosecutor’s au­
          thority. But he has not done so. So long as this regulation
          remains in force the Executive Branch is bound by it, and indeed
          the United States as the sovereign composed of the three branches
          is bound to respect and to enforce it.
Id. at 696 (emphasis added). The Court in Nixon cited as authority for its
analysis a number of other decisions in which agency regulations that are
“legislative” in character, in the sense that they implement grants of statutory
discretion, were considered binding on agencies.5 If an agency wishes not to
comply with one of its own rules, the courts have indicated, the agency would
have to amend or revoke the rule first. Otherwise, there would be a violation of

  4 In th is case, it is clear from the statute’s language and legislative history that C ongress granted HUD a
m axim um range o f discretion, and left the agency to decide w hether to exercise all o f the discretion granted:
          T he H ouse bill contained a provision to am end the National H ousing Act to allow the
       m axim um m ortgage lim its for high c o st areas to exceed statutory lim its up to 75 percent, while
       the S enate am endm ent allowed the m ortgage limits for those areas to exceed the statutory limits
       up to 90 percent. T he conference report contains the Senate provisions, with an amendment
       w hich provides that mortgage lim its may exceed the statutory lim its up to 75 percent in any
       g eographical area. In addition, where determ ined by the Secretary on a project-by-project basis,
       the maximum mortgage limits for high cost areas may exceed the statutory limits up to 90 percent.
H .R. Rep. No. 706, 96th C ong., 1st Sess. 65 (1979) (em phasis added).
  5 See U nited States ex ret. Accardi v. Shaughnessy, 347 U.S. 260 (1954); Service v. D ulles, 354 U.S. 363,
388 (1957); Vitarelh v. Sea to n , 359 U.S. 535 (1959).


                                                       42
the principle that the Government, no less than private citizens, is obliged to
comply with the law.6
   These cases compel the conclusion that the existing HUD rule setting the
maximum limit of 90 percent above the stated amounts for insured mortgages
should be amended before the 90 percent maximum is exceeded. Even though
the agency’s statute recently has been amended to permit mortgages in some
cases up to 140 percent above the stated amounts, the existing rule constitutes a
separate constraint. We would add that when the existing rule was promulgated
in 1980, the process was expedited through exceptions in the Administrative
Procedure Act to the usual notice and comment requirements. See 5 U.S.C.
§ 553. Those exceptions might be invoked again to help assure that there will
be no undue delay in amending the existing rule.7
   We conclude that HUD must amend the existing rule in pertinent part before
exercising its newly granted discretion to increase the limits of certain insured
mortgages by up to 140 percent.

                   II. The Status of Agency Rules as a Condition for
                           the Exercise of Agency Discretion

   Your general inquiry is distinguished from your specific question in that it
deals with the situation facing an agency before any rule has been issued
pursuant to statute. As you have expressed the issue, must the Secretary “feel
himself constrained from acting upon statutorily granted authority until he also
has promulgated a regulation that . . . permits him to do it” or, put another way,
must the Secretary “consider the statutory authority somehow unperfected until
there is a regulation”?

   6 See Vitarelh v. Seaton, 359 U.S. 535, 546—47 (1959) (Frankfurter, J., concurring in part and dissenting in
part). For the principle that rules which im plem ent grants o f statutory discretion have the force and effect of
law, see, e.g.. U nited States v. N ixon, 418 U.S 683, 695 (1974); United States v. Mersky, 361 U.S. 431, 438
(1960); Rodw ay v. United States D e p 't o f Agriculture, 514 F.2d 809, 814 (D.C. Cir. 1975). For the principle
that rules bind agencies until m odified or am ended, in addition to the authorities cited supra note 5, see H elhn
v. United States, 374 U.S. 109 (1963); Bonita v. Wirtz, 369 F.2d 208 (1966); U nited States v. Short, 240 F.2d
292, 298 (9th Cir. 1956); Am erican Broadcasting Co. v. FCC, 179 F.2d 437 (1947), N ader v. Bork, 366 F.
Supp. 104 (D.D.C. 1973); U nited States v. Chapman, 179 F. Supp. 447 (E.D.N.Y. 1959).
   7 We m ust caution, however, that courts are often careful to indicate that m ere adm inistrative convenience,
w ithout more, will not suffice to bring a particular situation within the term s o f the statutory exceptions to
notice and com m ent procedures. See, e.g., Council o f the Southern M ountains, Inc. v. D onovan, 653 F.2d 573,
580-81 (D.C. Cir. 1981).
      HUD rem ains bound by its ow n rule even though few if any private parties might actually be harm ed by
the agency’s decision not to com ply with the rule. There is a distinction betw een questions o f standing (who
is harm ed by failure to com ply with a rule?) and legal responsibility (is there a rule binding an agency?).
Legal responsibility may exist regardless o f w hether any private party w ould necessarily be in a position to
secure a judicial judgm ent regarding the legality o f the agency’s action.
      We also note that there is a distinction betw een rules that im plem ent grants o f statutory discretion and
thus bind an agency until altered o r repealed, such as the rule at issue here, and statem ents o f policy that are
only precatory and do not create definite duties o r responsibilities. Cf. Thorpe v Housing A uthority o f C ity o f
D urham , 393 U.S. 268, 275 (1969) (in holding that certain circulars in H U D ’s low rent m anuals im posed a
m andatory obligation, the C ourt indicated that som e “handbooks” o r “booklets” containing general instruc­
tions or items o f consideration may not im pose such a m andatory obligation). The present case does not raise
any serious doubt as to w hether HUD is bound by the term s o f the rule in question.

                                                        43
   The answer to your question will generally turn on the nature of the appli­
 cable statutory requirements. Absent statutory language to the contrary, agen­
cies are free to decide whether to implement a grant of discretion by means of
rules, which provide prospective standards of behavior, or by means of case-
by-case decisionmaking (or adjudication).8 In some situations, however, an
agency’s statute may specifically require that, before discretion is exercised, an
agency must promulgate rules to guide the use of discretion.
   An example of a situation in which rulemaking is a prerequisite for the
exercise of discretion is provided by the leading case of Addison v. Holly Hill
Fruit Products, Inc., 322 U.S. 607 (1944), which involved a provision of the
Fair Labor Standards Act exempting from its requirements employees “within
the area of production (as defined by the Administrator), engaged in canning of
agricultural . . . commodities for market.” Id. at 608 (emphasis added). Under
the terms of this statute, the phrase “area of production” was not defined, but
was left to be defined by the relevant agency head. Without such a definition —
which would be a prospective standard constituting a rule — the statutory
provision could not be fully operative on its own terms.9
   Other statutes more generally direct an agency to promulgate regulations
providing certain standards pursuant to particular authorities. For instance, the
National Traffic and Motor Vehicle Safety Act provides in part that the “Secre­
tary of Transportation shall establish appropriate motor vehicle safety stan­
dards.” See 15 U.S.C. § 1392(a). Of course, one cannot assume, merely on the
basis of such broad mandatory language, that any particular type of standards
must be promulgated. Even when a statute declares that an agency “shall” issue
regulations, a host of questions remain concerning the degree of specificity, the
breadth and the particular contents of any given regulatory scheme; these
questions must be resolved in the first instance by the responsible agency.
   To be sure, there are many situations in which controlling statutes do not
require an agency to issue regulations, and in which no claim can be made that
due process dictates that an agency promulgate some general rules to structure
and regularize its discretion under law.10 In these cases, agencies generally are

   8 See, e.g ., N A A C P v. F ederal Power C o m m ’n, 425 U.S. 662, 668 (1976) (“As a general proposition it is
c le ar that the C om m ission has the discretion to decide w hether to approach these problem s through the
process o f rulem aking, individual adjudication, o r a com bination of the tw o procedures.”). O f course, the
suitab ility o f rulem aking o r adjudicatory p rocedures in given situations w ill depend on a detailed exam ination
o f w hat exactly the agency is seeking to do, an d under what authority. See NLRB v. Wyman Gordon Co., 394
U .S. 759 (1969); N LR B v. B ell Aerospace C o ., 416 U.S. 267 (1974).
   9 A rule is defined in the Administrative Procedure A ct in broad terms as “ the whole or a part o f an agency
statem ent o f general o r p articu lar applicability and future effect designed to implement, interpret, or prescribe
law o r p o licy .” 5 U .S.C. § 551 (4). In Addison itself, a regulation was prom ulgated and published in the Code
o f Federal R egulations by the Administrator o f the Fair Labor Standards Act to define an “area o f production”
as including, in ter alia, an individual engaged in canning “if the agricultural or horticultural com m odities are
obtained by the establishm ent where he is em ployed from farm s in the im m ediate locality and the num ber o f
em ployees in such establishm ent does not ex ceed seven.” 322 U S. at 609
   10 C ourts have som etim es, though not often, held that due process requires the enunciation o f general rules
or standards governing the exercise of an a g e n c y 's discretion in order to avert the possibility o f a wholly
arbitrary decisionm aking process. See, e.g.. H olm es v. New York City H ousing Authority, 398 F.2d 262 (2d
Cir. 1968); H ornsby v. A llen , 326 F.2d 605 (5th Cir. 1964).

                                                         44
free to decide whether to exercise their statutory authority by means of regula­
tions. The decision whether to issue regulations in such instances turns on
complex issues of policy, which must be addressed by those most familiar with
a given statutory and administrative scheme.
   Among the central considerations supporting an agency’s decision to pro­
mulgate rules are that the rules may provide prospective standards to guide the
conduct of the agency and others, and supply answers to questions engendered
by the agency’s authorizing legislation.11 Moreover, rulemaking provides spe­
cial benefits to the affected public, for it is a public process that provides notice
to interested groups about an agency’s course of action. See, e.g., National
Petroleum Refiners A ss’n v. FTC, 482 F.2d 672, 681-83 (D.C. Cir. 1973). In
the end, however, the actual decision about how to implement a statute granting
discretion ultimately remains with the agency itself, subject to judicial review
in an appropriate case.

                                                               T h eo d o re B. O lso n
                                                           Assistant Attorney General
                                                            Office of Legal Counsel




  11 See, e.g., M orton v Ruiz* 415 U S . 199, 231 (1974) (“The pow er of an adm inistrative agency to
adm inister a congressionally created and funded program necessarily requires the form ulation o f policy and
the making o f rules to fill any gap left, im plicitly or explicitly, by Congress.”).

                                                   45
