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Docket Number

No. 87-3084.

Attorney(S)

Mark A. Venuti, Washington, D.C., appointed by the Court, for appellant. Sharon A. Cohen, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee. Michael W. Farrell, Asst. U.S. Atty., and Joseph E. diGenova, U.S. Atty., Washington, D.C., also entered appearances for appellee. At the time brief was filed.

Judges

Abner Joseph Mikva

Acts

Government Organization And Employees — Administrative Procedure — Administrative Procedure — The Agencies Generally — Rule Making

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Smart Summary

Summary of Opinion: United States v. Concepcion Picciotto, No. 87-3084 (D.C. Cir. May 23, 1989)

Factual and Procedural Background

Since 1981, Concepcion Picciotto maintained a continuous vigil on the sidewalk bordering Lafayette Park, opposite the White House, to protest nuclear war. On July 1, 1987, she was arrested by a United States Park Police officer for violating a Park Service regulation that prohibited storing property at a demonstration site in an amount greater than reasonably required for a twenty-four hour demonstration. After a bench trial, Judge Jackson found Picciotto guilty and imposed a ten-day suspended prison sentence and six months unsupervised probation. Picciotto appealed to the United States Court of Appeals for the District of Columbia Circuit.

Legal Issues Presented

Whether the National Capital Parks regulation provision (36 C.F.R. § 7.96(g)(5)(xiii), "clause 13") permitted the Park Service to adopt, without APA notice-and-comment procedures, generally applicable substantive restrictions on demonstrators (i.e., whether an agency may rely on a previously promulgated, general regulation to avoid APA rulemaking for later substantive restrictions).
Whether the Lafayette Park storage restriction adopted pursuant to clause 13 was an interpretive rule (exempt from notice-and-comment) or a substantive rule (subject to APA procedures), and thus whether a conviction based on that restriction can stand given the lack of notice-and-comment or an incorporated "good cause" statement required by the APA.

Arguments of the Parties

Appellee (Park Service / Government) Arguments

The Park Service contended that clause 13 (already adopted after notice and comment) authorized the Regional Director to impose "additional conditions" uniformly on all demonstrators in national capital region parks without separate notice-and-comment procedures for each such condition.
The Park Service argued the Lafayette Park storage rule was interpretive (rather than substantive), construing or restating existing duties embodied in the camping regulation (36 C.F.R. § 7.96(i)(1)), and thus exempt from APA notice-and-comment.
Alternatively, the Park Service suggested it had "good cause" to omit notice-and-comment under 5 U.S.C. § 553(b)(B) (the "good cause" exemption) to permit site-specific variation, implying the exemption justified not publishing the rule for comment.

Appellant (Concepcion Picciotto) Arguments

The opinion does not contain a detailed account of the appellant's legal arguments beyond her challenge to the validity of the conviction and the rule under which she was prosecuted.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Chamber of Commerce v. Occupational Safety and Health Administration, 636 F.2d 464, 470-71 (D.C. Cir. 1980)	Establishes that a rule subject to APA procedural requirements but adopted without them is invalid; and provides guidance on interpreting an agency's intent in labeling a rule as interpretive.	The court relied on Chamber of Commerce to hold that rules adopted without required APA procedures are invalid and to evaluate the plausibility of the Park Service's claim that the Lafayette Park storage rule was merely interpretive.
Federal Election Commission v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 32, 102 S.Ct. 38, 42, 70 L.Ed.2d 23 (1981)	Agencies may not create their own exemptions that would nullify Congressional directives.	The court cited this case to emphasize that the Park Service cannot construct its own veto of Congress's directions embodied in the APA.
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416-17, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971)	Individualized agency permit decisions are reviewable under the arbitrary and capricious standard.	The court noted that if clause 13 were read to permit individualized permit conditions, such determinations would be reviewable under the Overton Park standard.
Stuart-James Co. v. Securities and Exchange Commission, 857 F.2d 796, 800 (D.C. Cir. 1988)	An agency is ordinarily entitled to construe its own regulations.	The court acknowledged the agency's entitlement to interpret its regulations but proceeded to decide whether the conviction could stand given the APA requirements.
American Hospital Association v. Bowen, 834 F.2d 1037, 1044-45 (D.C. Cir. 1987)	APA notice-and-comment exemptions must be narrowly construed to preserve public participation and information goals.	The court used this principle to emphasize that exceptions to notice-and-comment are construed narrowly and to reject expansive readings of exemptions.
Gibson Wine Co. v. Snyder, 194 F.2d 329, 332 (D.C. Cir. 1952)	Example of an agency rule deemed interpretive because it explained an ambiguous statutory term.	Used as an example distinguishing interpretive rules from substantive ones; the court contrasted these precedents with the storage rule's characteristics.
American Postal Workers Union v. United States Postal Service, 707 F.2d 548, 559-60 (D.C. Cir. 1983)	Agency rules that adopt methods based on the agency's understanding of statutory terms can be interpretive.	Provided precedent for what constitutes an interpretive rule; court found the Park Service's late characterization unpersuasive in light of the text and context of the storage rule.
Cabais v. Egger, 690 F.2d 234, 238 (D.C. Cir. 1982)	Directives that merely restate existing duties have been found interpretive.	The court referenced this case in discussing the distinction between rules that restate duties (interpretive) and rules that create new obligations (substantive).
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 statutory understanding.	Again used as an example of interpretive rules; the court compared these examples to the storage rule and concluded the storage rule was substantive.
Batterton v. Marshall, 648 F.2d 694, 701-02 (D.C. Cir. 1980)	Rules that grant rights and impose obligations are substantive.	The court cited Batterton to support the proposition that the storage rule, which imposed criminal penalties, was substantive rather than interpretive.

Court's Reasoning and Analysis

The court's analysis proceeded in several discrete steps:

Identification of the challenged rule: The storage restriction for Lafayette Park was adopted by the Regional Director as one of "additional conditions" pursuant to clause 13 of 36 C.F.R. § 7.96(g)(5)(xiii). Appellant received a copy of these additional conditions but there was no Federal Register notice of proposed rulemaking and no public comment opportunity for the "additional conditions."
Basic APA principle: The Park Service, like other agencies, must follow the APA's notice-and-comment procedures for informal rulemaking unless an express exemption applies. A rule subject to APA procedures but adopted without them is invalid; criminal prosecutions based on such rules are held to the strict letter of the APA.
Rejection of the Park Service's self-exemption theory: The Park Service argued that because clause 13 itself was adopted after notice-and-comment, the agency could subsequently promulgate substantive, generally applicable restrictions under clause 13 without further notice-and-comment. The court rejected this view as unlawful and implausible: allowing an agency to exempt itself from APA procedures by embedding a delegation in a previously promulgated regulation would defeat Congressional intent and the APA's mandate; agencies cannot construct such self-executing exemptions.
Interpretation of clause 13's text: Clause 13 speaks of "a permit" containing additional conditions and thus, on its face, contemplates permit-specific, individualized conditions as part of the permit-granting process, not the adoption of generally applicable substantive rules for the public at large. If read to authorize only individualized permit conditions, such actions would be reviewable under the arbitrary and capricious standard.
Consideration of whether the storage rule was interpretive: The Park Service argued the storage rule merely interpreted the existing camping prohibition (36 C.F.R. § 7.96(i)(1)). The court found this position unpersuasive: the Lafayette Park storage rule did not cite the camping regulation, did not use the term "camping," was labeled an "additional condition," was site-specific (applicable only to Lafayette Park), and the Park Service previously adopted a stricter White House sidewalk storage prohibition after notice-and-comment—suggesting the agency viewed comparable rules as substantive. Given these facts, the court concluded the storage rule was an independent substantive rule.
Consideration of the "good cause" exemption: The Park Service invoked the APA "good cause" exemption (5 U.S.C. § 553(b)(B)) at oral argument. The court noted that an agency relying on that exemption must incorporate in the rule a statement explaining why it found good cause to omit notice-and-comment. Because the Park Service did not include any such statement in the "additional conditions," the court declined to decide whether good cause actually existed and instead held the agency could not rely on the exemption in this case.
Conclusion from the analysis: Because the storage rule was substantive and was adopted without required APA procedures (and without an incorporated statement invoking the "good cause" exemption), the rule was invalid and could not support a criminal conviction.

Holding and Implications

Holding: The court reversed the conviction. The opinion states the core ruling as: Reversed.

Implications:

The Lafayette Park storage rule, having been adopted without the APA's required notice-and-comment procedures and without an incorporated "good cause" statement, was invalid and could not support the criminal conviction of Concepcion Picciotto.
The court reaffirmed that agencies cannot create self-executing exemptions from the APA by vesting future rulemaking authority in a general regulation; APA procedural requirements apply to substantive rules unless an express, applicable exemption is properly invoked and documented.
The decision's direct effect on the parties is the reversal of Picciotto's conviction; the court did not purport to create novel exceptions to APA principles beyond enforcing the APA's existing requirements and construal of exemptions as described in the opinion.

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UNITED STATES OF AMERICA v. CONCEPCION PICCIOTTO, APPELLANT.

MIKVA, Circuit Judge:

Appellant Concepcion Picciotto was convicted of violating a rule promulgated by the United States Park Service. She was given a suspended sentence and probation. We reverse. The case turns on the ability of a government agency to exempt itself from the rulemaking requirements of the Administrative Procedure Act ("APA"). We find that the APA, in balancing the goals of agency efficiency and open, informed government, permits agencies to bypass the established procedures only under certain express circumstances. The way in which the Park Service promulgated the rule under which appellant was convicted precludes the Park Service from relying on one of the APA's express exceptions. Therefore, the rule was null and void.

I. BACKGROUND

Since 1981, Concepcion Picciotto has engaged in a twenty-four-hour-a-day vigil on the sidewalk bordering Lafayette Park, across the street from the White House, to warn the public about the dangers of nuclear war. On July 1, 1987, Officer Brad Hewick of the United States Park Police arrested Ms. Picciotto for violating a park regulation prohibiting the storage of property at her demonstration site in Lafayette Park in an amount greater than that reasonably required for a twenty-four hour demonstration.

After a bench trial, Judge Jackson found Ms. Picciotto guilty as charged and gave her a ten-day suspended prison sentence and six months unsupervised probation. Ms. Picciotto appeals.

II. DISCUSSION

The Park Service has promulgated regulations governing activity in all national capital region parks, which include parks in the District of Columbia and parts of Virginia and Maryland. See 36 C.F.R. § 7.96 (1988). Subsection (g) imposes certain restrictions on demonstrations and special events. Some of the restrictions apply to all parks in this area; some to specific parks. Lafayette Park is one of the sites for which specific restrictions have been adopted.

Subsection (g) also contains, in addition to defined regulations, an open-ended provision, as follows:

A permit may contain additional reasonable conditions and additional time limitations, consistent with this section, in the interest of protecting park resources, the use of nearby areas by other persons, and other legitimate park value concerns.

36 C.F.R. § 7.96(g)(5)(xiii) ("clause 13"). This provision, along with the rest of § 7.96, was properly adopted pursuant to the APA's notice and comment requirements, see 5 U.S.C. § 553 (1982).

The Regional Director of National Capital Parks adopted, pursuant to clause 13, a number of "additional conditions" that were made generally applicable to all demonstrators in Lafayette Park. Appellant was convicted for violating the first of these:

Property may not be stored in the Park, including, but not limited to construction materials, lumber, paint, tools, household items, food, tarps, bedding, luggage, and other personal property. (In this regard, certain personal property that is reasonably required by a demonstration participant during any one 24-hour period will not be considered to violate this permit condition. Such property may include items such as a coat, a thermos, and a small quantity of literature. However, the quantity of these items may not exceed that which is reasonably necessary in a 24-hour period.)

Appellant received a copy of these "additional conditions" from Supervisory Park Ranger Philip Walsh, but the Park Service did not publish a general notice of proposed rulemaking in the Federal Register and neither appellant nor the general public was given an opportunity to comment.

The Park Service, like any other government agency, must conform to the APA's notice and comment requirements when engaging in any informal agency rulemaking procedures, unless properly relying on an exception. A rule which is subject to the APA's procedural requirements, but was adopted without them, is invalid. See Chamber of Commerce v. Occupational Safety and Health Administration, 636 F.2d 464, 470-71 (D.C. Cir. 1980). Certainly, a criminal prosecution founded on an agency rule should be held to the strict letter of the APA.

The Park Service interprets clause 13 as granting it the authority to impose new substantive restrictions uniformly on all demonstrators in any national capital region park, without engaging in notice and comment procedures. It claims that since clause 13 went through notice and comment, the new restrictions do not need to. In essence, the Park Service is claiming that an agency can grant itself a valid exemption to the APA for all future regulations, and be free of APA's troublesome rulemaking procedures forever after, simply by announcing its independence in a general rule. That is not the law. Such agency-generated exemptions would frustrate Congress' underlying policy in enacting the APA by rendering compliance optional. The statute's direct mandate requires notice and comment procedures for any rule that does not fall within certain express exceptions. See § 553(b)-(e). The Park Service cannot construct its own veto of Congressional directions. See Federal Election Commission v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 32, 102 S.Ct. 38, 42, 70 L.Ed.2d 23 (1981).

Furthermore, the Park Service's reading of clause 13 is implausible as well as unlawful. The provision specifies that "a permit" may contain additional conditions and time limitations. By its own terms, the language allows the Park Service only to attach specific limitations to individual permits as part of its permit-granting procedure, not to adopt rules applicable to the general public. Since the APA does not specify procedures for informal agency decisions such as whether or not to permit a particular demonstration, the Park Service would not be acting inconsistently with the APA by announcing its procedures for approving permits on individualized terms. Thus the regulation, read as written, would not be inconsistent with the APA: the Park Service could adjust permits to the specific circumstances of individual demonstrations, but the limitations attached to any given permit would be reviewable under the APA's arbitrary and capricious standard. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416-17, 91 S.Ct. 814, 823-24, 28 L.Ed. 2d 136 (1971).

We need not, however, decipher the correct reading of clause 13. The agency is entitled ordinarily to construe its own regulation. Stuart-James Co. v. Securities and Exchange Commission, 857 F.2d 796, 800 (D.C. Cir. 1988). The issue before this court is whether a conviction based on a violation of the Lafayette Park storage rule, adopted pursuant to clause 13 but without notice and comment, can stand. We find that clause 13 does not provide a basis for upholding the conviction, because clause 13 either does not authorize the imposition of general rules such as the Lafayette Park storage restriction, or it attempts to and is therefore invalid.

The APA does provide for exemptions from its notice and comment requirements. But we note at the outset that the APA's notice and comment exemptions must be narrowly construed. American Hospital Association v. Bowen, 834 F.2d 1037, 1044-45 (D.C. Cir. 1987) ("In light of the importance of these policy goals of maximum participation and full information, we have consistently declined to allow the exceptions itemized in section 553 to swallow the APA's well-intentioned directive.").

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 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.

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.

U.S. v. PICCIOTTO