Memorandum

To: File 

Subject: Delegation of PSD Permit Authority to Assistant Administrator 

Date: March 3, 2011 

 This memorandum sets forth the legal basis for the Administrator’s decision to delegate, 

without notice and comment rulemaking, authority to the Assistant Administrator for the Office 

of Air and Radiation to issue a final permit decision on the Avenal PSD permit application under 

40 CFR § 124.15 and to take other associated actions that are assigned to a Regional 

Administrator under 40 CFR Part 124. 

Conclusion 

The Administrator’s decision to delegate this authority to one official rather than another is an 

internal agency procedure that does not affect the rights of members of the public. The 

delegation can thus be classified as a rule of “agency organization, procedure, or practice” that is 

not subject to the notice and comment requirements of the Administrative Procedure Act (APA) 

or Clean Air Act (CAA). See 5 U.S.C. § 553(b)(A); 40 U.S.C. 7607(d). EPA is not required to 

publish this procedural rule in the Code of Federal Regulations in order for the delegation to be 

effective. 

Legal Analysis

I. Notice and comment rulemaking is not required for procedural rules. 

Section 553 of the APA and section 307(d) of the Clean Air Act require public notice and 

opportunity for comment prior to the promulgation of substantive rules. The APA contains an 

exception for “rules of agency organization, procedure, or practice.” 5 U.S.C. § 553(b)(3)(A). 

The applicability of this exception is expressly preserved under section 307(d) of the Clean Air 

Act. This exception for procedural rules has repeatedly been affirmed by the courts. The Third 

Circuit stated plainly in SBC Inc. v. FCC, 414 F.3d 486, 498 (3d Cir. 2005) that “procedural 

rules . . . are exempted from the notice and comment requirement.” Similarly, the D.C. Circuit 

explained the following in James A. Hurson Assocs. v. Glickman, 229 F.3d 277, 280 (D.C. Cir. 

2000): “Although federal agencies ordinarily must provide the public with notice of a proposed 

rule and the opportunity to submit comments on it, the APA makes an exception for, among 

others, rules of agency organization, procedure, or practice.” Furthermore, courts have 

recognized that “[t]he express exemption under section 553(b)(3)(A) extends to ‘technical 

regulation of the form of agency action and proceedings.’” S. Cal. Edison Co. v. FERC, 770 

F.2d 779 (9th Cir. 1985) (FERC rule establishing approval procedures for interim rates exempt 

from notice and comment.

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II. A delegation of authority within an agency is a procedural rule, not a substantive 

rule. 

Courts recognize that the delegation of authority from one agency official to another is 

procedural, not substantive. In Sacora v. Thomas, the Ninth Circuit determined that an agency’s 

requirement that regional directors approve prisoner placements was an agency practice “merely 

assign[ing] a particular official the responsibility of exercising the authority delegated to the 

[Bureau of Prisons] and its Director by statute.” 628 F.3d 1059, 1063 (9th Cir. 2010). Similarly, 

in United States v. Gonzales, a district court held that the decision by the Department of 

Homeland Security to delegate immigration bond-breach review authority to the Bureau of 

Citizenship and Immigration Services was not subject to the APA’s notice and comment 

requirements “[s]ince the delegation specifies the internal organization of the agency.” 728 F. 

Supp. 2d 1077, 1085 (N.D. Cal. 2010). The court reasoned that the delegation “does not alter the 

right to make an appeal; it only identifies the body that will exercise jurisdiction over the appeal 

once the appeal is made.” Id. Finally, the court noted that the rights or obligations of the party 

making the appeal “are properly laid out in a separate section of the Code of Federal 

Regulations.” Id. at 1085-86. 

These principles apply here. First, the temporary delegation applicable to the Avenal 

permit application specifies the internal organization of EPA and, thus, falls within the APA’s 

procedural exemption. The Administrator’s decision here to authorize the Assistant 

Administrator to issue the final permit decision on this application instead of the Regional 

Administrator affects only which Agency official is responsible for completing procedures 

specified in the Part 124 regulations. Second, the delegation does not alter the rights and 

obligations of parties under Part 124, including rights to request appeals to the Environmental 

Appeals Board (EAB), which are located elsewhere in the Code of Federal Regulations (CFR). 

See, e.g., 40 C.F.R. § 124.19(a) (establishing right of appeal to EAB); id. (obligation to raise 

issues during comment period in order to preserve them for appeal). Accordingly, the 

Administrator can effect this delegation without notice and comment. See 5 U.S.C. § 553(b)(A). 

III. The references to the Regional Administrator in Part 124 are procedural rules. 

Part 124 of Title 40 sets forth the “Procedures for Decisionmaking” governing the 

issuance, modification, and termination of permits. It contains two types of provisions. First, it 

contains substantive provisions that (a) vest in the public rights to participate in the 

decisionmaking process, including the right to appeal certain permits to the EAB and (b) 

establish obligations regarding the content and timing of the public comment process and 

petitions for an appeal. See e.g. 40 C.F.R. § 124.19(a) (authorizing appeals for issues raised 

during comment period within fixed time frames). Second, it contains language establishing 

specific procedures to be followed by EPA and assigning responsibility to particular officials to 

carry out those procedures. See, e.g., 40 C.F.R. § 124.15 (noting that “after the close of the 

public comment period under § 124.10 on a draft permit, the Regional Administrator shall issue 

a final permit decision.”); id. (“the Regional Administrator shall notify the applicant” of the final 

permit decision); 40 C.F.R. § 124.19(a) (the 30-day deadline for filing an appeal “begins with the 

service of the notice of the Regional Administrator’s action”). Unlike Part 124’s substantive 

provisions which provide rights to third parties, these references to the Regional Administrator 

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identify the official within the agency responsible for implementing particular steps in the 

procedures required under Part 124 and provide the framework and context within which the 

public can participate in the Agency’s decisionmaking process, including exercising its appeal 

rights and obligations. In promulgating these rules, EPA chose to describe its procedures in the 

“active voice” (rather than the “passive voice”) and to identify as the subject of these sentences’ 

the official delegated the authority to complete these actions, i.e., the Regional Administrator. 

EPA’s decision to avoid passive phrases like “the applicant shall be notified” or “the permit shall 

be issued” was motivated by an attempt to clarify for the public the agency permitting 

procedures; it did not create rights or obligations outside the agency with respect to who would 

implement the procedures. 

Characterizing these provisions as procedural rules is consistent with longstanding case 

law. The D.C. Circuit has explained that “the critical feature of a rule that satisfies the so-called 

procedural exception is that it covers agency actions that do not themselves alter the rights or 

interests of parties, although it may alter the manner in which the parties present themselves or 

their viewpoints to the agency.” James A. Hurson Assocs. v. Glickman, 229 F.3d at 280; see also 

SBC Inc. v. FCC, 414 F.3d at 497 (rate recovery rule that did not impose new duties upon 

regulated entities was not substantive). In Glickman, the court characterized an agency decision 

to abolish face-to-face meetings during the label approval process as procedural, even though the 

change affected the party’s interaction with agency decision makers. Despite its impact, the rule 

was held to be a procedural rule because it did not change substantive criteria, but merely 

procedures for applying them. Id.; see also Inova Alexandria Hosp. v. Shalala, 244 F.3d 342, 

350 (4th Cir. 2001) (rule permitting dismissal of appeals for untimely filing is “a procedural rule 

for handling appeals” because it “does not alter the substantive standards by which it reviews 

provider claims”). The Administrator’s decision here to direct one Agency official rather than 

another to propose and issue this permit will have even less external impact than the rule upheld 

in Glickman, since the instant decision does not affect the rights of parties, or even the manner in 

which parties interact with the agency. Furthermore, the Administrator’s selection of the official 

who will issue a final permit decision under 40 CFR 124.15 under the particular circumstances of 

the Avenal permit application does not impinge upon the underlying standards by which permit 

decisions are made, or even the procedures for applying those standards. 

To determine whether a rule is procedural, the D.C. Circuit has also “inquir[ed] more 

broadly whether the agency action . . . encodes a substantial value judgment.” Pub. Citizen v. 

Dep’t of State, 276 F.3d 634 (D.C. Cir. 2002) (State Department’s new date cutoff for FOIA 

requests was procedural). “[V]alue judgment” has been construed narrowly and does not 

encompass “judgments about what mechanics and processes are most efficient.” JEM Broad. 

Co. v. FCC, 22 F.3d 320, 326 (D.C. Cir. 1994). Under this standard, the Administrator’s 

decision to direct one Agency official rather than another to propose and issue this permit 

reflects an assessment of procedural efficiency, rather than a substantial value judgment for 

which notice and comment would be required. 

An agency’s characterization of its rule in the Federal Register provides guidance as to 

whether it is substantive or procedural in nature. United States v. Am. Prod. Indus., 58 F.3d 404, 

408 (9th Cir. 1995) (noting that agency described rule delegating compromise authority to 

Branch Directors as “related to agency organization and management”). The preamble to Part 

124 notes that “[t]hese regulations are an important element of an Agency-wide effort to 

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consolidate and unify procedures and requirements applicable to EPA and State-administered 

programs” and “[e]stablish[] the procedures to be followed in making permit decisions.” The 

references in Part 124 to the permit issuance and notification process, e.g., 40 C.F.R. §§ 124.15, 

124.16 are examples of the procedural rule provisions encompassed within these historical 

descriptions. 

IV. EPA is not required to publish notice of the delegation in Federal Register. 

The APA’s publication requirements are centered upon providing public access to agency 

promulgations that affect the rights of the public. Section 552 is the only provision of the APA 

that discusses publication in the CFR (or Federal Register). Section 552(a) of the APA requires 

the publication of certain agency materials, including “the nature and requirements of all formal 

and informal procedures available,” 5 U.S.C. § 552(a)(1)(B), and “rules of procedure,” 5 U.S.C. 

§ 552(a)(1)(C). Section 552(b), however, specifically exempts certain materials from 

publication, including “matters that are related solely to the internal personnel rules and practices 

of an agency.” 5 U.S.C. § 552(b)(2). Courts have interpreted § 552(b) as exempting internal 

agency practices from publication in the Federal Register. See, e.g., Bunge Corp. v. United 

States, 5 Cl. Ct. 511, 523 (1984) (“When the matter in issue involves a policy that is entirely 

internal to the agency and that, of itself, does not affect the conduct of private parties, publication 

is not required.”); Diller Active v. Schweiker, 556 F. Supp. 478, 483 (D.D.C. 1983) (Medicare 

reimbursement guidelines need not be published where “[t]here is no evidence that the guidelines 

impose mandatory obligations . . . or that they effect pre-existing legal rights or obligations”). 

The exception in § 552(b)(2) encompasses changes in internal agency procedure. Morgan v. 

U.S. Postal Serv., 798 F.2d 1162 (8th Cir. 1986) (internal procedures regarding administrative 

remedies for employee discrimination claims need not be published); Whelan v. Brinegar, 538 

F.2d 924 (2d Cir. 1976) (DOT not required to comply with APA publication requirements prior 

to abrogating rule governing compensation). As discussed above, the delegation of PSD 

permitting authority to the Assistant Administrator affects only internal agency practice, and 

does not affect the rights of the public to submit comments or to petition for administrative 

review of the final permit decision reached by the Administrator’s delegate. Hence, this 

delegation falls within the § 552(b) exemption. 

Furthermore, the courts have specifically characterized delegation as an internal agency 

procedure subject to this exemption. United States v. Fitch Oil Co., 676 F.2d 673 (Temp. Emer. 

Ct. App. 1982) (DOE not required to publish statement delegating authority to issue subpoenas); 

United States v. Goodman, 605 F.2d 870, 888 (5th Cir. 1979) (Attorney General did not have to 

publish delegation of authority to identify controlled substances to DEA Assistant Administrator 

because APA “does not require that all internal delegations of authority . . . must be published.”); 

Hogg v. United States, 428 F.2d 274 (6th Cir. 1970) (DOJ not required to publish internal 

instructions delegating authority to file notices of appeal). The publication requirements of § 

552 “attach only to matters which if not published would adversely affect a member of the 

public.” Chevron Oil v. Andrus, 588 F.2d 1383, 1388 fn. 8 (5th Cir. 1979), cert. denied, 444 

U.S. 879 (1979) (publication not required for DOI guidelines stating that an officer who 

delegates authority does not divest himself of it). Consequently, the Administrator’s delegation 

regarding the Avenal permit application is precisely the type of delegation for which publication 

is not required. 

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This analysis is not altered by EPA’s past decision, as a matter of policy, to publish its 

EAB procedures in the CFR. Part 124 interweaves legislative and procedural rules. EPA chose 

to publish the procedural rules, including the references to the Regional Administrator in 40 

C.F.R. §§ 124.15, 125.16 and 124.19 among other places, in order help the public understand the 

context for the rights to submit public comments and appeal a final permit decision created in 

Part 124. This good-government choice does not change the provisions’ references to the 

Regional Administrator as “internal personnel rules and practices of an agency”; nor, therefore, 

does it nullify the exemption established in § 552(b)(2). The Agency could, if it wished, revise 

the CFR to codify this particular one-time delegation, but it has no legal obligation to do so. In 

this case, EPA believes that clarity is not served by changing the CFR text. Nor is the public 

interest served; rather, all members of the public will have received actual and timely notice of 

the delegation to the Assistant Administrator by virtue of the supplemental statement of basis 

that explains why the Administrator has issued this delegation and by the placement of the 

delegation in the public docket for this permit. Therefore, as a matter of policy, the agency has 

the discretion to decide not to revise the CFR to accommodate the one-time delegation. 

In short, the Administrator’s decision to make this delegation without providing notice 

and an opportunity to comment and without revising Part 124 to memorialize this delegation is 

consistent with the APA.