212 F.2d 280 (9th Cir. 1954), 13621, Hotch v. United States

Docket Nº13621.
Citation212 F.2d 280
Party NameHOTCH v. UNITED STATES.
Case DateMarch 22, 1954
CourtUnited States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 280

212 F.2d 280 (9th Cir. 1954)

HOTCH

v.

UNITED STATES.

No. 13621.

United States Court of Appeals, Ninth Circuit.

March 22, 1954

Page 281

Frederick Paul, Seattle, Wash., William L. Paul, Jr., Juneau, Alaska, for appellant.

P. J. Gilmore, Jr., U.S. Atty., James M. Fitzgerald, Asst. U.S. Atty., Juneau, Alaska, for appellee.

Before STEPHENS, BONE, and ORR, Circuit Judges.

STEPHENS, Circuit Judge.

Steven V. Hotch was convicted of fishing in violation of a regulation of the Department of the Interior extending the period closed to commercial fishing on the Taku Inlet. 1 In an opinion filed September 14, 1953, this court affirmed the conviction, holding that the cited regulation was within the scope of the authority delegated by statute, 2 and that it applied to Hotch. See Hotch v. United States, 9 Cir., 1953, 208 F.2d 244. Subsequently, Hotch petitioned this court for a rehearing at which time he first raised the argument that the regulation was not effective since it had not been published in the Federal Register. As the petition raised a jurisdictional point, we entertained it and in a supplemental opinion, filed December 2, 1953, reversed the conviction on the ground that the regulation closing the Taku Inlet to commercial fishing from 6:00 P.M. Thursday of each week was ineffective since it had not been published in the Federal Register. 3 Hotch v. United States, 9 Cir., 1953, 208 F.2d 249.

The United States now petitions for a rehearing on the ground that publication was not necessary to make the regulation in issue effective against the defendant in this action since (as it is stated in the petition) the defendant had actual notice of the extended closed period.

Section 5(a) of the Federal Register Act, Title 44 U.S.C.A. § 305, requires the publication in the Federal Register of, among other documents, 4 such documents or classes of documents as may be required to be published by Act of Congress. 5 Any such document which is not duly published is invalid. 6 In 1946, Congress enacted the Administrative Procedure Act, 60 Stat. 237, 5 U.S.C.A. § 1001 et seq., in which it described certain classes of documents which it required to be published.

Section 4(a) of the Administrative Procedure Act, Title 5 U.S.C.A. § 1003 (a), requires that:

Page 282

'General notice of proposed rule making shall be published in the Federal Register (unless all persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law) * * *.' 7

And section 3 (a)(3), Title 5 U.S.C.A. § 1002(a)(3), Title 5 U.S.C.A. 1002(a)(3) requires that:

'Every agency 8 shall separately state and currently publish in the Federal Register * * * substantive rules adopted as authorized by law * * *.'

We quote from the Report of the House of Representatives Committee on the Judiciary in its statement on the substance of the Administrative Procedure Act:

'In the 'rule making' (that is, 'legislative') function it (the Administrative Procedure Act) provides that with certain exceptions agencies must publish notice and at least permit their views in writing for agency consideration before the issuance of general regulations (sec. 4).' U.S. Code Congressional Service, 79th Congress, Second Session, 1946, p. 1195, at 1205.

The report goes on to state that hearings need not be held on a proposed regulation 9 unless required by statute. But the important disclosure is that publication is a prerequisite to the issuance of a regulation.

The Congressional directive in regard to the procedure to be followed in the issuance of agency regulations must be strictly complied with, since the issuance of regulations is in effect an exercise of delegated legislative power. In the case before us, neither notice that a regulation extending the closed period on the Taku Inlet was to be issued, nor the proposed regulation itself, was published in the Federal Register. The failure to comply with either of the referred to provisions of the Administrative Procedure Act means that the procedure laid down by Congress for the implementation of agency rules and regulations has not been met.

Appellee (United States) relies heavily on the language of section 7 of the Federal Register Act, Title 44 U.S.C.A. § 307, to support its contention that actual notice is a substitute for the requirement of publication, to-wit:

'No document required under section 305(a) of this chapter to be published in the Federal Register shall be valid as against any person who has not had actual knowledge thereof until the duplicate originals or certified copies of the documents shall have been filed with the Division 10 and a copy made available for public inspection as provided in section 302 of this chapter [section

Page 283

2 of the Federal Register Act]; * * *.'

But section 7 does not imply, as appellee would have it, that the referred to document or rule would be valid without publication as to a person who has actual notice. For section 7 must be read in connection with section 2 which it modifies. Section 2 sets up a requirement in addition to publication, i.e., it provides that an original and two duplicate originals of a proposed rule must be filed with the Division. And section 7 provides that a proposed rule is not valid, although published, until those duplicate originals have been filed. An exception to the requirement of filing the duplicate originals is made in the circumstances where the interested party has had actual notice. But no exception is made to the independent requirement of publication, nor can section 7 of the Federal Register Act be inferred to intend such an exception, particularly in view of the reiteration of the requirement of publication found in subsections 4(a) and (c) of the Administrative Procedure Act, which is a later expression by Congress; Title 5 U.S.C.A. § 1003(a) and (c).

While the Administrative Procedure Act and the Federal Register Act are set up in terms of making information available to public, the...

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51 practice notes
  • 395 F.Supp. 1367 (E.D.Pa. 1975), Civ. A. 73-2221, Tasty Baking Co. v. Cost of Living Council
    • United States
    • Federal Cases United States District Courts 3th Circuit Eastern District of Pennsylvania
    • May 30, 1975
    ...regulations are void unless published in strict conformity with the Administrative Procedure Act. Hotch v. United States, 14 Alaska 594, 212 F.2d 280 at 283-284 (9th Cir. 1954). Since we do not agree with the Secretary that he properly ignored the 30-day rule, we must therefore set aside th......
  • 676 F.2d 352 (9th Cir. 1982), 80-3231, Buschmann v. Schweiker
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • May 3, 1982
    ...Environmental Protection, 595 F.2d 207, 210 (5th Cir. 1979); Anderson v. Butz, 550 F.2d 459, 462 (9th Cir. 1977); Hotch v. United States, 212 F.2d 280 (9th Cir. 1954); Carter v. Blum, 493 F.Supp. 368, 372 (S.D.N.Y.1980); Kelly v. United States Department of Interior, 339 F.Supp. 1095, 1100-......
  • 72 Cal.App.3d 629, Civ. 16034, Armistead v. California State Personnel Board
    • United States
    • California California Court of Appeals
    • August 10, 1977
    ...with, since the issuance of regulations is in effect an exercise of delegated legislative power.' (Hotch v. United States (9 Cir. 1954) 212 F.2d 280, 282, 14 Alaska 594; Tasty Baking Company v. Cost of Living Council (D.C., 1975) 395 F.Supp. 1367, at p. 1389; cf. California Citizens Band As......
  • 687 P.2d 332 (Alaska App. 1984), 7407, Harrison v. State
    • United States
    • Alaska Court of Appeals of Alaska
    • August 31, 1984
    ...alcoholic beverages into St. Mary's, his conduct was not criminal. In support of his argument, Harrison quotes Hotch v. United States, 212 F.2d 280, 284 (9th Cir.1954) (emphasis in original): "a law which has not been duly enacted is not a law, and therefore a person who does not compl......
  • Request a trial to view additional results
51 cases
  • 395 F.Supp. 1367 (E.D.Pa. 1975), Civ. A. 73-2221, Tasty Baking Co. v. Cost of Living Council
    • United States
    • Federal Cases United States District Courts 3th Circuit Eastern District of Pennsylvania
    • May 30, 1975
    ...regulations are void unless published in strict conformity with the Administrative Procedure Act. Hotch v. United States, 14 Alaska 594, 212 F.2d 280 at 283-284 (9th Cir. 1954). Since we do not agree with the Secretary that he properly ignored the 30-day rule, we must therefore set aside th......
  • 676 F.2d 352 (9th Cir. 1982), 80-3231, Buschmann v. Schweiker
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • May 3, 1982
    ...Environmental Protection, 595 F.2d 207, 210 (5th Cir. 1979); Anderson v. Butz, 550 F.2d 459, 462 (9th Cir. 1977); Hotch v. United States, 212 F.2d 280 (9th Cir. 1954); Carter v. Blum, 493 F.Supp. 368, 372 (S.D.N.Y.1980); Kelly v. United States Department of Interior, 339 F.Supp. 1095, 1100-......
  • 72 Cal.App.3d 629, Civ. 16034, Armistead v. California State Personnel Board
    • United States
    • California California Court of Appeals
    • August 10, 1977
    ...with, since the issuance of regulations is in effect an exercise of delegated legislative power.' (Hotch v. United States (9 Cir. 1954) 212 F.2d 280, 282, 14 Alaska 594; Tasty Baking Company v. Cost of Living Council (D.C., 1975) 395 F.Supp. 1367, at p. 1389; cf. California Citizens Band As......
  • 687 P.2d 332 (Alaska App. 1984), 7407, Harrison v. State
    • United States
    • Alaska Court of Appeals of Alaska
    • August 31, 1984
    ...alcoholic beverages into St. Mary's, his conduct was not criminal. In support of his argument, Harrison quotes Hotch v. United States, 212 F.2d 280, 284 (9th Cir.1954) (emphasis in original): "a law which has not been duly enacted is not a law, and therefore a person who does not compl......
  • Request a trial to view additional results