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Attachments for Ralph's E-Mail on Substantive Regulations

E-Mail is below Attachments

This is a post to accomplish the goal of demonstrating that substantive regulations plus statutory authority concerning ALL AGENCIES is mandatory to have any force and effect of law, i.e. to have legal effect, and if not so published, it can not affect any of my rights. Agencies CAN NOT OPERATE WITH BARE STATUTES, WITH THE EXCEPTIONS THAT THE CONGRESS CAN HAVE PROCEDURAL ISSUES IN THE CODE THAT ARE BINDING UPON THE AGENCIES.

This post will concern itself with the mandates under the federal register act and other acts associated with it. I will state without all of the documents in support thereof very briefly facts that are important to understand this post. Some Supreme Court of the United States decisions will be included.

Congress usurped the executive Power in the Tenure of Office Act after the Civil War on March 2, 1867 (14 Stat 430), which is on my home page under miscellaneous documents – left side. This was repealed in the 1880's, but part of it survived in the Postal area, and in Myers v. United States, 272 U.S. 52 (1922) [a very long case and will provide later with analysis in Officers of the United States], the Tenure of Office Act was held to be unconstitutional [took 59 years for someone to challenge this, even though the different presidents complained]. The issue was that Congress declared that the President of the United States could not fire his cabinet without the consent of Congress in order to force President Johnson's cabinet to carry forth on the unconstitutional acts of Congress. Also part of this was the Army appropriations act also under miscellaneous documents on my home page. [Later] Johnson's firing of a cabinet member, which lead 4 days later to his attempted impeachment by Congress, which failed by one vote. See proclamation of Johnson on home page of his distaste for the acts of Congress. Myers, supra, changed it back that the President can fire any of his Cabinet members without cause.

Congress usurped the judicial Power of the United States on the same day with the act to validate all of the President’s actions and forbid the Court from looking into any of the issues (14 Stat. 432 This has never been challenged to date.

There is much more in this area that I will expand upon, being inferior Officers, i.e. Officers of the United States, in that there are no "Officers of the United States" today, and the agencies jugular is that the people in them have no "Office" and are not "Officers of the United States", therefore no Power- PERIOD. Article 2, Section 2, Clause 2 is the source of Officers of the United States. [Later Post to prove]

So if we fast forwarding to today, Congress still has us under the provisional military government structure implemented after the Civil War in place until the people of our Republic figure out the problem and demand that both Congress and the President surrender in writing all of the War Powers. This would have tremendous effect in America today, not the least of which is establishing the several States in the Union.

With all of this said, who are these Executive Agencies in America today? First of all, these Executive Agencies are not under the executive Power of the Constitution, but are administrative executive agencies under Congress and sit outside the Constitution. [Will provide proof later]

The Social Security System is an inquisitorial agency. See Sims v. Apfel, 530 U.S. 103, 110, 111 (2000). In reality the IRS is also an inquisitorial agency!. [proof in a later post, but it is easy to establish that the IRS enforces and investigates (i.e. investigatory is nice word for "inquisitorial"]

Simply put, an inquisitorial hearing or proceeding is where the party in charge asks all ( or almost all of the questions) of the questions, controls the proceeding totally, and there is no asking questions of the party in charge. There is no cross-examination of the witness or parties by us, only the party in charge asks questions, expecting answers. There are hybrids to this, but the fact is that it is still of an inquisitiorial hearing. A Books and Records hearing conducted by the IRS is this type of inquisitorial hearing. This is unconstitutional, but access to the courts (sic) is supposed to disguise this type of inquisitorial hearing.

Congress invests an agency with enforcement and investigatory authority [ Under a Constitutional Republic, this is only to be done under the executive Power – not in the legislative side that is only to enact Law], it is not necessary to identify explicitly each and every technique that may be used in the course of the executing the statutory mission. See Dow Chemical Company v. United States, 476 U.S. 227, 233 (1986). Note the use of enforcement and investigatory!. A law professor, Henry J. Friendly, suggested that the this term of inquisitorial was would give the agencies a bad name and we should us investigatory, to wit (123 U.Pa. L. Rev. 1267, 1290 1975 - Some Kind of Hearing (1975)):

Whoever baptized the continental system as "inquisitorial" did a disservice to American legal thought. [FN119] Call it "investigatory" and the pejorative connotation fades away. Use of the investigatory system should not be viewed as a lessening of protection to the individual; if properly applied, it could well result in more. This investigatory model would also have the advantage of being more informal; the decision maker, in a conference-type setting, would hear the evidence and discuss the dispute with the parties and with their attorneys, assuming that they were permitted to have them. [FN120]

If we are to experiment with the investigatory model anywhere, this is the ideal place to do it. Strongly embedded traditions, specific constitutional limitations, and resistance of the bar will prevent its use not only in criminal but also, to a lesser extent, in ordinary civil litigation. There is no constitutional mandate requiring use of the adversary process in administrative *1291 hearings unless the Court chooses to construct one out of the vague contours of the due process clause. But that clause does not forbid reasonable experimentation. For a state to experiment with procedures for mass administrative justice wholly different from those required in a felony trial would be a splendid vindication of "one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory." [FN121] Alternatively, federal agencies administering various welfare programs might attempt to implement different forms of nonadversary procedure. Action of this sort would provide controlled experiments in areas where transplantation of even a diluted form of trial type proceedings is not likely to work well.

[FN108]. On this, and the whole subject of the adversary system, see Judge Frankel's remarkable Cardozo lecture, The Search for Truth: An Umpireal View, 123 U. PA. L. REV. 1031 (1975). Passages bearing particularly on the role of the advocate will be found at 1040-43, 1047-48, 1050-55.

[FN119]. Judge Frankel has noted our curious and unfortunate parochialism on this score, Frankel, supra note 108, at 1043.

[FN120]. Critical to the successful implementation of this or indeed of any plan for improving the efficiency of mass justice is the assurance of an adequate supply of skilled hearing officials. Baum, supra note 51, at 45-47. Although the British example of drawing the membership of its tribunals in many areas from a pool of citizen volunteers or, in other areas, of drawing on individuals with special skills to work part time, see note 74 supra, should be emulated where feasible, given the number of hearings' currently provided it is likely that most administrative agencies will be dependent upon "professional" decision makers for some time. There is thus a need to continue the upgrading of such positions, both through training and through compensation sufficient to attract capable individuals. Cf. B. SCHWARTZ, supra note 114, at 26-29, 56-57, 86-87 (French National School of Administration); M. WALINE, TRAITE ELEMENDE DROIT ADMINISTRATIF 73 (6th ed. 1951).

Isn't this enough to make you want to puke, and this review was in the SS case as a source.

In our Constitutional Republic, there is really one [excluding a inquest for like deaths, etc which is not totally a inquisitorial proceeding] inquisitorial entity and this is the GRAND JURY! See United States v. John Doe, Inc. I, 481 U.S. 102, 118 et seq. (1987)(dissenting opinion) - Very, very Good INFO.

What is little understood is the rest of the common law system is the adversary system, i.e. the right to confront, present evidence, cross-examine, etc. when issues of our life, liberty, or pursuit of happiness is involved.

Only under the rights created against the United States [benefits such as money for war veterans, and other similar types of legitimate problems] can the Congress bypass the courts and put us into the administrative State controlled totally by Congress. See United States v. Babcock, 250 U.S. 328, 321 (1919)-Rights Created in Individuals against the United States.

How they have converted us to the Roman Civil Law type system is by the elimination of the adversary system and Laws of the United States by the process of Codification - extinguishes all prior law. See The Institutes (Roman Law) (1970)

In the Constitutional Republic criminal system, you are to be first submitted to the preliminary examination (adversary – probable cause) [statute venue], then if probable cause is found, then submitted to the Grand Jury (inquisitorial)(statute venue] and then if indicted, submitted to the petite jury (adversary) (statue venue).

This has been converted in Alaska to the Roman Civil Law with first being submitted to a pre-indictment hearing (inquisitorial)(doesn't exist anywhere in law or court rule)(preliminary examination moved to a rule of court - never used) and then submitted to the Grand Jury (inquisitorial)(rule of court) and then the Appearance of Justice [stated by the Court’s publication] i.e. a hybrid Star Chamber, commercial, inquisitorial, and Roman Civil Law.

The federal system is very similar in that there is no preliminary examination, usually secret indictments started by rule 7 (paper signed by IRS agent not under oath which hardly ever see the light of day), and off you go to the Grand Jury.

Now with all of this said and me getting to some other informational areas, I will follow up with substantive regulations.

This information should be invaluable in the fight against the IRS to validate that substantive regulations with the statute only has application to us - not statutes alone, as statutes alone are only for the executive Power - not agencies under Congress.

Now with some of the basic ideas proffered, I will move into the substantive regulations area. There is a one-line that is partially done, but it has a couple of changes to be made yet and then page 2 is being drafted. But it will be included as it will assist in picturing substantive regulations – but it is not represented to be totally accurate.

The next concept is to provide means in a criminal trial to enter documents, to use in a civil issues such as Injunctions, and FOIA’s.

I will start with the fact that Congress has extinguished all Executive Departments by usurpation and changing them all into Executive Agencies (5 U.S.C. § 101 & § 105), which as with any agency, there are always two parties – master – servant; employer – employee; lawyer-client, etc. Congress in one of the parties, and the other administrative Executive Agencies are the other party. It is extremely important to understand that the Executive Agency is not part of the executive Power in Article II, but sits outside of the Constitution.

Comments will be in between the “==========” for the purpose of each of the following. This can’t be extensive, but should get the idea across with some study.

UNITED STATES OF AMERICA (“USA”) is an unknown entity (must be Congress, but can’t really prove yet), but is presumed to be an instrumentality of the United States, to which I object and denies that USA has any standing or status to enter into a true Article III de jure Court of the United States.

Contained in these public records it states that UNITED STATES OF AMERICA is an instrumentality of the United States, and proof of this is found in the following CFRs, 10 CFR § 2.902, 10 CFR § 20.1003, 10 CFR § 30.4, 10 CFR § 40.4, 10 CFR § 50.2, 10 CFR § 61.2, 10 CFR § 70.4, 10 CFR § 74.4, 10 CFR § 140.3, 10 CFR § 150.3, 10 CFR § 170.3, 10 CFR § 171.5, to wit:

Government agency means any executive department, commission, independent establishment, or corporation, wholly or partly owned by the United States of America which is an instrumentality of the United States; or any board, bureau, division, service, office, officer, authority, administration, or other establishment in the executive branch of the government. [Emphasis added]

a) The term "agency of the United States" means the executive branch of the United States, or any Government agency, or the legislative branch of the United States, or any agency, committee, commission, office, or other establishment in the legislative branch, or the judicial branch of the United States, or any office, agency, committee, commission, or other establishment in the judicial branch. [Emphasis added]

1. The primary purpose of the Administrative Committee of the Federal Register is to inform the public of the nature and uses of the Federal Register publications (1 CFR § 2.1).

The Office of the Federal Register (OFR) informs citizens of their rights and obligations by providing ready access to the official text of Federal laws, Presidential documents, administrative regulations and notices, and descriptions of Federal organizations, programs and activities. [Emphasis added]

These rights are created by Congress, not constitutional rights secured, and I find no place for creating an obligation upon the people in the constitution. Social Security is at the bottom of most of this problem.

All of the mandatory requirements from the Federal Register committee to all of the agencies will be found in Title 1.

2. The specific Agency issuing a regulation in the CFRs shall identify itself in the particular regulation (1 CFR § 22.1).

This is required as all of the agencies are in the CFR’s to be able to identify them.

3. All regulations having general applicability and legal effect are to be published in the Federal Register and Code of Federal Regulations (1 CFR § 1.1, 1 CFR § 2.5, 1 CFR § 5.2, 1 CFR § 5.9, 1 CFR § 8.1, and 44 U.S.C. § 1505).

This is critical information and mandatory ALL REGULATIONS with general applicability and legal effect that be published in the FR and in the CFRs. This applies to ALL Agencies, without exception – all regulations must be published.

5. A special edition of the Federal Register called the Code of Federal Regulations shall contain each Federal regulation of general applicability and legal effect, keeping said CFRs as current as possible (1 CFR § 8.1);

6. When the regulations are published they must cite the statutory authority (1 CFR § 8.5, 1 CFR 21.40, 1 CFR § 21.52, and 1 CFR § 22.2).

This also in unambiguous language in all of these different regulations mandate that the statutory authority be attached to the regulation. This in reality is known as a “substantive regulation” – later in this document.

This is something that most people for some reason choose not to take as true. You must have the substantive regulation and the statutory authority attached – can’t use statutes alone!

7. Statutory authorities and substantive regulations (note – only substantive regulations are published in the Parallel Table of Authorities) shall be published in Parallel Tables which are cited by issuing agencies as rulemaking authority for currently effective regulations in the CFRs (1 CFR § 8.5).

The Parallel Table of Authorities (PTA) is a finding aid only, and what the PTA shows in all of the CODE sections with the substantive regulations authorized by the statutes. The problem here is that the substantive regulations are shown only in a general area, and does not specifically list each regulation. If the individual substantive regulations were listed the IRS would be out of business. This is what I have hundreds of hours researching all of the substantive regulations under a particular Code section. So far, nothing has application to American citizens in the territorial boundaries of the United States excluding the territories.

8. The Agency is responsible for publishing it’s regulations (1 CFR § 21.41).

This is extremely important to get the IRS into the CFRs as an Agency. This would be a major move in a criminal trial.

10. The IRS must use regulations relating to taxes contained in Title 26 of the CFRs ((26 CFR § 601.101(b)).

This again is extremely important to limit the IRS to only regulations in Title 26- no statutes by themselves!

11. The Internal Revenue Service is to publish in the Federal Register various substantive regulations under the Internal Revenue code of 1986 as found in 26 CFR § 601.702(a)(1)(ii) such as, to wit:

(a) The regulations in part 1 of this chapter (Income Tax Regulations) ((26 CFR § 601.702(a)(1)(ii)); and,

(b) The regulations in part 20 of this chapter (Estate Tax Regulations) ((26 CFR § 601.702)(a)(1)(ii)); and,

There it is in unambiguous language – substantive regulations for part 1, Income Tax Regulations! Also included is the withholding in part 31. THIS IS CONCLUSIVE PROOF THAT THE IRS IS TO USE ONLY SUBSTANTIVE REGULATIONS.

12. If the Internal Revenue Service fails to publish the regulations in 26 CFR § 601.702(a)(1) no person shall be adversely affected if it is not so published, “Thus, for example, any such matter which imposes an obligation and which is not so published or incorporated by reference shall not adversely change or affect a person’s rights.” (26 CFR § 601.702(a)(2)(ii).

Again, conclusive evidence in this public record – if not published – can’t affect me in any manner!

13. The Internal Revenue Service is required to publish in the Federal Register the rules set forth in Part 601 (Statement of Procedural Rules) ((26 CFR § 601.702)(a)(1)(ii)).

14. The Internal Revenue Service is required to publish in the Federal Register the regulations in part 301 (Procedure and Administrative Regulations) ((26 CFR § 601.702)(a)(1)(ii)).

15. The Internal Revenue Service is required to separately state and currently publish regulations as required under 5 U.S.C. § 552(a)(1) (26 CFR § 601.702); and,

(a) Descriptions of the IRS organization and methods for obtaining documents (26 CFR § 601.701(a)(i)(A); and,

(b) Statement of all of the formal and informal procedures of the IRS (26 CFR § 601.701(a)(i)(B); and,

(d) Substantive Rules of general applicability adopted as authorized by law (Congress) (26 CFR § 601.701(a)(i)(D).

This again is critical where the IRS in a public record states that it will abide by the unambiguous language of 5 U.S.C. 552(a)(1), which mandates that general applicability is required (D). The description of the IRS in this is quite interesting if you read it carefully.

16. The Internal Revenue Service under 26 CFR § 602.702(a)(1)(i) is required by unambiguous language of Congress under 5 U.S.C. (a)(1) to execute the following, to wit:

(a) The agency (IRS) shall make available to the public and publish in the Federal Register for the guidance of the public:

(1) Descriptions of the IRS organization and methods for obtaining documents ((5 U.S.C. § (a)(1)(A)); and,

(2) Statement of all of the formal and informal procedures of the IRS ((5 U.S.C. § (a)(1)(B)); and,

(b) Rules of Procedure, description of forms with instructions ((5 U.S.C. § (a)(1)(C)); and,

(c) Substantive Rules of general applicability adopted as authorized by law (Congress) and statement of general policy or interpretations of general applicability formulated and adopted by the agency ((5 U.S.C. § (a)(1)(D)); and,

(d) If the Internal Revenue fails to publish, as required, each amendment, revision, or repeal of the foregoing, “Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published.” ((5 U.S.C. § (a)(1).

Read carefully as this mandatory requirements to the IRS in the unambiguous language of Congress in the CODE of 5 U.S.C. § 552(a). 5 U.S.C. § 706 is the mandated remedy for courts, agents, and agencies – not shown.

Regardless of how serious a problem that an administrative agency seeks to address, it cannot operate in any manner inconsistent with the APA, and a reviewing Court must give effect to the intent of Congress. This is held in the adjudged decision of the Supreme Court of the United States in Food and Drug Administration v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 125-126 (2000), to wit:

Regardless of how serious the problem an administrative agency seeks to address, however, it may not exercise its authority "in a manner that is inconsistent with the administrative structure that Congress enacted into law." ETSI Pipeline Project v. Missouri, 484 U.S. 495, 517, 108 S.Ct. 805, 98 L.Ed.2d 898 (1988). And although agencies are generally entitled to deference in the interpretation of statutes that they administer, a reviewing "court, as well as the agency, must give effect to the unambiguously expressed *126 intent of Congress." Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). [Emphasis added]

And further, if the intent of Congress is clear, that is the end of the matter for the agency and the court. The court must give effect to the explicit intent of Congress and this is held in the following adjudged decision of the Supreme Court of the United States with holdings of other Supreme Court decisions in Chevron, U.S.A., Inc v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984), to wit:

If the intent of Congress is clear, that is the end of the matter; for the court, *843 as well as the agency, must give effect to the unambiguously expressed intent of Congress. [FN9]

FN9. The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent. See, e.g., FEC v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 32, 102 S.Ct. 38, 42, 70 L.Ed.2d 23 (1981); SEC v. Sloan, 436 U.S. 103, 117-118, 98 S.Ct. 1702, 1711-1712, 56 L.Ed.2d 148 (1978); FMC v. Seatrain Lines, Inc., 411 U.S. 726, 745-746, 93 S.Ct. 1773, 1784-1785, 36 L.Ed.2d 620 (1973); Volkswagenwerk v. FMC, 390 U.S. 261, 272, 88 S.Ct. 929, 935, 19 L.Ed.2d 1090 (1968); NLRB v. Brown, 380 U.S. 278, 291, 85 S.Ct. 980, 988, 13 L.Ed.2d 839 (1965); FTC v. Colgate-Palmolive Co., 380 U.S. 374, 385, 85 S.Ct. 1035, 1042, 13 L.Ed.2d 904 (1965); Social Security Board v. Nierotko, 327 U.S. 358, 369, 66 S.Ct. 637, 643, 90 L.Ed. 718 (1946); Burnet v. Chicago Portrait Co., 285 U.S. 1, 16, 52 S.Ct. 275, 281, 76 L.Ed. 587 (1932); Webster v. Luther, 163 U.S. 331, 342, 16 S.Ct. 963, 967, 41 L.Ed. 179 (1896). If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect. [Emphasis added]

18. Substantive Regulations Have the “Force and Effect of Law.

It has been held in the adjudged decision of the Supreme Court of the United States, Chrysler Corp. v. Brown, and citing other adjudged decisions of the Supreme Court of the United States, that only a substantive regulation has the force and effect of law and it has a specific process accorded to it by the Administrative Procedures Act (“APA”) to have “force and effect of law” which must be followed explicitly. This is found in the adjudged decision of Chrysler Corp. v. Brown, 441 U.S. 281, 295, 296, 301-303 (1979), to wit:

It has been established in a variety of contexts that properly promulgated, substantive agency regulations have the "force and effect of law." [FN18] This doctrine is so well established that agency regulations implementing federal statutes have been *296 held to pre-empt state law under the Supremacy Clause. [FN19] It would therefore take a clear showing of contrary legislative intent before the phrase "authorized by law" in ß 1905 could be held to have a narrower ambit than the traditional understanding.

FN18. E. g., Batterton v. Francis, 432 U.S. 416, 425 n. 9, 97 S.Ct. 2399, 2405, 53 L.Ed.2d 448 (1977); Foti v. INS, 375 U.S. 217, 223, 84 S.Ct. 306, 310, 11 L.Ed.2d 281 (1963); United States v. Mersky, 361 U.S. 431, 437-438, 80 S.Ct. 459, 463, 4 L.Ed.2d 423 (1960); Atchison, T. & S. F. R. Co. v. Scarlett, 300 U.S. 471, 474, 57 S.Ct. 541, 543, 81 L.Ed. 1375 (1937).

In order for a regulation to have the "force and effect of law," it must have certain substantive characteristics and be the product of certain procedural requisites. The central distinction among agency regulations found in the APA is that between "substantive rules" on the one hand and "interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice" on the other. [FN30] A "substantive *302 rule" is not defined in the APA, and other authoritative sources essentially offer definitions by negative inference. [FN31] But in Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974), we **1718 noted a characteristic inherent in the concept of a "substantive rule." We described a substantive rule--or a "legislative-type rule," id., at 236, 94 S.Ct., at 1074--as one "affecting individual rights and obligations." Id., at 232, 94 S.Ct., at 1073. This characteristic is an important touchstone for distinguishing those rules that may be "binding" or have the "force of law." Id., at 235, 236, 94 S.Ct., at 1074.

That an agency regulation is "substantive," however, does not by itself give it the "force and effect of law." The legislative power of the United States is vested in the Congress, and the exercise of quasi-legislative authority by governmental departments and agencies must be rooted in a grant of such power by the Congress and subject to limitations which that body imposes. As this Court noted in Batterton v. Francis, 432 U.S. 416, 425 n. 9, 97 S.Ct. 2399, 2405 n. 9, 53 L.Ed.2d 448 (1977)

Likewise the promulgation of these regulations must conform with any procedural requirements imposed by Congress. Morton v. Ruiz, supra, 415 U.S. at 232, 94 S.Ct. at 1073. For agency discretion is limited not only by substantive, statutory grants of authority, but also by the procedural requirements which "assure fairness and mature consideration of rules of general application." NLRB v. Wyman-Gordon Co., 394 U.S. 759, 764, 89 S.Ct. 1426, 1429, 22 L.Ed.2d 709 (1969). [Emphasis added]

Citing adjudged decisions of the Supreme Court of the United States and other sources it was held in Sea-Land Service, Inc. v. Department of Transp., 137 F.3d 640, 645 (D.C. Cir. 1998) that substantive regulations have the force and effect of law, regulations must be followed by citizens subject to legal consequences of law, and federal regulations count as law for Supremacy Clause, to wit:

The plain meaning of a statute is (at least for starters) the one produced by reading its words to have the meaning they do in most contexts, and in most contexts, "law" includes an administrative command backed by a criminal sanction. See, e.g., Chrysler Corp. v. Brown, 441 U.S. 281, 295, 99 S.Ct. 1705, 1714, 60 L.Ed.2d 208 (1979) (substantive agency regulations have "force and effect of law"); Singer v. United States, 323 U.S. 338, 345-46, 65 S.Ct. 282, 286-87, 89 L.Ed. 285 (1945) (regulations backed by criminal sanctions are law); General Motors Corp. v. Abrams, 897 F.2d 34, 39 (2d Cir.1990) (regulations and orders have force of law); Black's Law Dictionary 884 (6th ed.1990) ("That which must be obeyed and followed by citizens subject to sanctions or legal consequences is a law."); see also, e.g., Fidelity Federal Savings & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664 (1982) (federal regulations count as law for Supremacy Clause). [Emphasis added]

19. Use of Non-Substantive Regulations by Agency are Void

Agency actions by the use of non-substantive regulations are void or agencies failure to comply with rulemaking requirements of Federal APA is fatal, and this is held in the adjudged decision of State of Ohio DHS v. U.S. DHHS, 862 F.2d 1228, 1237 (1988), to wit:

In the case before us, the agency's failure to comply with the rulemaking requirements of the Administrative Procedure Act is fatal to the validity of the maintenance amount ceiling rule. As Judge Manos observed in Standard Oil, 453 F.Supp. at 243,

"agency action taken in disregard of statutory rulemaking procedures is void. See e.g. Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055, 37 L.Ed.2d 270 (1974); Consumers Union of United States, Inc. v. Sawhill, 393 F.Supp. 639 (D.D.C.), aff'd per curiam, 523 F.2d 1404 (TECA 1975); Joseph v. United States Civil Service Comm'n, 18 U.S.App.D.C. 281, 294-95, 554 F.2d 1140, 1153-54 (1977); Rodway v. United States Dept. of Agriculture, 168 U.S.App.D.C. 387, 395, 514 F.2d 809, 817 (1975); United States v. Finley Coal Co., 493 F.2d 285, 291 (6th Cir.1974). As the Temporary Emergency Court of Appeals stated in California v. Simon, 504 F.2d 430, 439 (TECA, 1974) 'substantial compliance with rulemaking requirements is essential to the validity of administrative rules.' "

See also Pickus v. United States Bd. of Parole, 507 F.2d 1107, 1114 (D.C.Cir.1974) (rules not adopted in accordance with Administrative Procedure Act rulemaking requirements were invalid). [Emphasis added]

The Supreme Court of the United States has held that the agency power that affects substantial individual rights and obligations must remain consistent with the Acts of Congress to avoid arbitrary, unpublished ad hoc determinations and that the agency must follow its own procedures. And as sanction and for the protection to the people, Congress mandated in 5 U.S.C. § 552(a)(1) that if no regulation is published and required as authorized by law (Congress), no person shall be adversely affected by the lack of any regulation not so published. This holding is found in the adjudged decision of the Supreme Court of the United in Morton v. Ruiz, 415 U.S. 199, 232-233, 235 (1974), to wit:

This agency power to make rules that affect substantial individual rights and obligations carries with it the responsibility not only to remain consistent with the governing legislation, Federal Maritime Comm'n v. Seatrain Lines, Inc., 411 U.S. 726, 93 S.Ct. 1773, 36 L.Ed.2d 620 (1973); Dixon v. United States, 381 U.S. 68, 74, 85 S.Ct. 1301, 1305, 14 L.Ed.2d 223 (1965); Brannan v. Stark, 342 U.S. 451, 72 S.Ct. 433, 96 L.Ed. 497 (1952), but also to employ procedures that conform to the law.

The Administrative Procedure Act was adopted to provide, inter alia, that administrative policies affecting individual rights and obligations be promulgated pursuant to certain stated procedures so as to avoid the inherently arbitrary nature of unpublished ad hoc determinations. See generally S.Rep.No.752, 79th Cong., 1st Sess., 12--13 (1945); H.R.Rep.No.1980, 79th Cong., 2d Sess., 21--23 (1946). That Act states in pertinent part:

'Each Agency shall separately state and currently publish in the Federal Register for the guidance of the public--

(D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability *233 formulated and adopted by the agency.' 5 U.S.C. s 552(a)(1).

'Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published.' Ibid. [FN27]

[8][9] Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures. This is so even where the internal procedures are possibly more rigorous than otherwise would be required. Service v. Dulles, 354 U.S. 363, 388, 77 S.Ct. 1152, 1165, 1 L.Ed.2d 1403 (1957); Vitarelli v. Seaton, 359 U.S. 535, 539--540, 79 S.Ct. 968, 972--973, 3 L.Ed.2d 1012 (1959). [Emphasis added]

See also United States v. Caceres, 440 U.S. 741, 752 (1979); Appalachian Power Co. v. Train, 566 F.2d 451, 457 (4^th Cir. 1977).

21. Courts Shall Set Aside Unlawful Agency Actions

Under 5 U.S.C. § 706, the reviewing court must set aside any unlawful agency actions in excess of statutory authority and all other unlawful or illegal acts, to wit:

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall--

(2) hold unlawful and set aside agency action, findings, and conclusions found to be--

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error. [Emphasis added]