The Park Service argues that the "additional conditions" are
exempt as "interpretive", rather than "substantive" rules. See 5
U.S.C. § 553(b)(A), (d)(2). The task of differentiating between
substantive and interpretive rules is not always an easy one; in
general, substantive rules create law, whereas interpretive rules
clarify existing law. This court has previously found agency
rules explaining ambiguous terms in statutes and regulations to
be interpretive. See, e.g., Gibson Wine Co. v. Snyder, 194 F.2d
329, 332 (D.C.Cir.1952) (finding that a rule requiring wine
derived wholly from boysenberries to be labeled boysenberry wine
rather than blackberry wine was interpretive of the statutory
requirement that fruit wine was to carry the name of the fruit
from which it was derived); American Postal Workers Union v.
United States Postal Service, 707 F.2d 548, 559-60 (D.C.Cir.1983)
(finding that the postal service's new method of calculating
retirement benefits was interpretive because adoption of the
method turned on the agency's understanding of the statutory term
"average pay"), cert. denied, 465 U.S. 1100, 104 S.Ct. 1594, 80
L.Ed.2d 126 (1984). We have also held rules that merely restate
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existing duties, rather than creating new duties, to
be interpretive. See, e.g., Cabais v. Egger, 690 F.2d 234, 238
(D.C.Cir.1982) (finding directives from the Secretary of
Agriculture interpretive because they merely recommended actions
required under a federal tax law); General Motors Corp. v.
Ruckelshaus, 742 F.2d 1561, 1565 (D.C.Cir.1984) (finding
interpretive a rule that restated consistent agency practice
based on the EPA's understanding of the recall provision of the
Clean Air Act), cert. denied, 471 U.S. 1074, 105 S.Ct. 2153, 85
L.Ed.2d 509 (1985). In contrast, we have found rules that grant
rights and impose obligations to be substantive. See, e.g.,
Batterton v. Marshall, 648 F.2d 694, 701-02 (D.C.Cir.1980).
The Park Service maintained, at oral argument, that the storage
rule interprets and restates the duties embodied in the existing
regulation prohibiting camping except in designated areas. See
36 C.F.R. § 7.96(i)(1) (defining camping as "use of park land for
living accommodation purposes ..., or making preparations to
sleep ..., or storing personal belongings, or making any fire
...") (emphasis added). We find this argument disingenuous and
late. There is no indication that the Park Service even intended
the storage rule as a construction of the camping regulation.
See Chamber of Commerce, 636 F.2d at 468 (explaining that a rule
is interpretive if the agency intended the rule to be no more
than an expression of its construction of a statute or rule but
reviewing the plausibility of an agency's contention that it did
so intend).
The text of the Lafayette Park storage rule neither cites the
camping regulation nor mentions the word "camping". Before oral
argument, the Park Service had not characterized the Lafayette
Park storage rule as an interpretation of the camping regulation.
Its publication of the rule calls it an "additional condition,"
and describes it and other additional conditions as adopted
pursuant to both clause 13 and a rule permitting the regional
director to limit sound amplification equipment. In contrast, an
interpretive rule explains an existing requirement; it does not
impose an "additional" one. Even in its brief submitted in this
case, the Park Service did not claim that the storage rule was
merely an interpretation of the camping regulation. Moreover, the
Park Service adopted the storage rule for Lafayette Park only,
whereas the camping regulation is applicable to all national
capital region parks. When the Park Service adopted a similarly
site-specific, albeit stricter, regulation prohibiting storage of
property on the sidewalks surrounding the White House, the Park
Service adopted it as a substantive rule requiring notice and
comment, not as an interpretive rule. See 36 C.F.R. §
7.96(g)(5)(ix).
We find this evidence persuasive that the Park Service intended
the Lafayette Park storage rule as an independent substantive
rule. A reviewing court need not classify a rule as interpretive
just because the agency says that it is. See Chamber of Commerce,
636 F.2d at 468. The fact that this rule establishes a criminal
offense entailing possible imprisonment for the violator is even
more reason for this court to be wary of the agency's last minute
justifications.
The Park Service also argues that it did not include the storage
rule when it engaged in notice and comment because it wanted to
vary rules according to site. There is an exemption to the APA
that permits an agency to promulgate a rule without notice and
comment when the agency finds for "good cause" that the
procedures are impracticable, unnecessary, or contrary to the
public interest. See 5 U.S.C. § 553(b)(B), (d)(3). To come
within that exemption, the agency must incorporate, in the rule
issued, a statement explaining why it found good cause to omit
those procedures, see § 553(b)(B). Because the Park Service did
not incorporate any such statement in the "additional conditions"
that contained the Lafayette Park storage rule, we need not
decide whether the Park Service had good cause to disregard APA
procedures. We do note, however, that the Park Service's
previous adoption of extensive and detailed site-specific
regulations after notice and comment erects a high burden of
persuasion.
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III. Conclusion
The rule that appellant was convicted of violating is a
substantive regulation, subject to the APA's procedural
requirements but adopted in their absence. Before a person is
threatened with jail for such a violation, the government must
ensure that the rule itself is not in violation of the law. The
government cannot meet that burden in this case. Appellant's
conviction is Reversed.
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Proposition One | Peace Park