B-135647, JUNE 5, 1958, 37 COMP. GEN. 820

B-135647: Jun 5, 1958

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THE AUTHORITY TO WAIVE ADMINISTRATIVE REGULATIONS WHICH WERE PROMULGATED. REQUESTS A DECISION WHETHER THE WAIVER PROVISION FOR HANDLING EXCEPTIONAL CASES WHICH IS CONTAINED IN THE 1957 SOIL BANK ACREAGE RESERVE PROGRAM REGULATIONS MAY PROPERLY BE EXERCISED IN A CASE WHERE SUCH ACTION WOULD INVOLVE WAIVING A SUBSTANTIVE PROVISION OF THE REGULATIONS. THE SPECIFIC CASE INVOLVED IS AS FOLLOWS: AFTER A PRODUCER HAD ENTERED INTO A 1957 ACREAGE RESERVE AGREEMENT PLACING 47 ACRES IN THE ACREAGE RESERVE FOR WHEAT HE REQUESTED PERMISSION FROM THE COUNTY COMMITTEE TO PLOW AND SEED TO MAIZE 64 ACRES WHICH WAS CLASSIFIED AS PASTURELAND (NONE OF THIS 64 ACRES WAS INCLUDED IN THE LAND DESIGNATED AS THE ACREAGE RESERVE).

B-135647, JUNE 5, 1958, 37 COMP. GEN. 820

REGULATIONS - WAIVERS - AUTHORITY - SOIL BANK PROGRAM A STATUTE WHICH AUTHORIZES AN ADMINISTRATIVE OFFICER TO PRESCRIBE REGULATIONS NECESSARY TO CARRY OUT A PROGRAM REQUIRES THE PROMULGATION OF REGULATIONS OF GENERAL APPLICATION AND DOES NOT IMPLY AUTHORITY FOR THE INCLUSION IN THE REGULATIONS OF A WAIVER PROVISION WHICH WOULD PERMIT THE ADMINISTRATOR IN HIS DISCRETION TO DISREGARD THE REGULATIONS IN CERTAIN INDIVIDUAL CASES AND TO ENFORCE THEM IN OTHERS. THE AUTHORITY TO WAIVE ADMINISTRATIVE REGULATIONS WHICH WERE PROMULGATED, PURSUANT TO THE SOIL BANK ACT, MUST BE BASED ON SPECIFIC STATUTORY LANGUAGE WHICH WOULD PERMIT THE EXERCISE OF ADMINISTRATIVE DISCRETION TO WAIVE THE REGULATIONS IN INDIVIDUAL CASES AND SUCH AUTHORITY MAY NOT BE IMPLIED FROM THE GENERAL LANGUAGE OF SECTION 124 OF THE ACT, 7 U.S.C. 1812, WHICH AUTHORIZES THE SECRETARY TO PRESCRIBE REGULATION TO CARRY OUT THE SOIL BANK PROGRAM.

TO THE SECRETARY OF AGRICULTURE, JUNE 5, 1958:

LETTER OF MARCH 26, 1958, FROM THE ASSISTANT SECRETARY OF AGRICULTURE, REQUESTS A DECISION WHETHER THE WAIVER PROVISION FOR HANDLING EXCEPTIONAL CASES WHICH IS CONTAINED IN THE 1957 SOIL BANK ACREAGE RESERVE PROGRAM REGULATIONS MAY PROPERLY BE EXERCISED IN A CASE WHERE SUCH ACTION WOULD INVOLVE WAIVING A SUBSTANTIVE PROVISION OF THE REGULATIONS, BUT NOT ONE REQUIRED BY STATUTE.

THE SPECIFIC CASE INVOLVED IS AS FOLLOWS:

AFTER A PRODUCER HAD ENTERED INTO A 1957 ACREAGE RESERVE AGREEMENT PLACING 47 ACRES IN THE ACREAGE RESERVE FOR WHEAT HE REQUESTED PERMISSION FROM THE COUNTY COMMITTEE TO PLOW AND SEED TO MAIZE 64 ACRES WHICH WAS CLASSIFIED AS PASTURELAND (NONE OF THIS 64 ACRES WAS INCLUDED IN THE LAND DESIGNATED AS THE ACREAGE RESERVE). THE COUNTY COMMITTEE, BEING UNAWARE OF THE PROVISIONS OF SECTION 485.216 OF THE REGULATIONS REGARDING NEW LAND BROUGHT INTO PRODUCTION, ADVISED HIM THAT PLANTING THE MAIZE WOULD NOT AFFECT HIS COMPENSATION UNDER THE ACREAGE RESERVE AGREEMENT. THE PRODUCER HAS FULLY PERFORMED UNDER HIS AGREEMENT IN EVERY RESPECT WITH RESPECT TO THE REDUCTION OF WHEAT AND REFRAINING FROM GRAZING OR HARVESTING THE ACREAGE RESERVE. HOWEVER, UNDER THE PROVISIONS OF SECTION 485.216 NO PAYMENT WOULD BE DUE HIM. IN VIEW OF THE ERRONEOUS INFORMATION FURNISHED THE PRODUCER BY THE COUNTY COMMITTEE, THE COUNTY COMMITTEE RECOMMENDS THAT A WAIVER OF THE PROVISIONS OF SECTION 485.216 BE GRANTED SO THAT PAYMENT MAY BE MADE TO THE PRODUCER.

SECTION 485.216 OF THE 1957 ACREAGE RESERVE REGULATIONS, 21 F.R. 10454 ( DI), PROVIDES:

IF THERE HAS BEEN NO VIOLATION OF THE AGREEMENT, THE AMOUNT OF COMPENSATION PAYABLE FOR THE COMMODITY SHALL BE DETERMINED BY MULTIPLYING THE RATE OF COMPENSATION PER ACRE FOR THE COMMODITY, DETERMINED IN ACCORDANCE WITH SECTION 485.217, BY (A) THE NUMBER OF ACRES IN THE ACREAGE RESERVE, OR THE NUMBER OF ACRES WHICH THE PRODUCER HAS AGREED TO PLACE IN THE ACREAGE RESERVE, WHICHEVER IS THE SMALLER, LESS (B) THE NUMBER OF ACRES OF NEW LAND NOT PRESENTLY INCLUDED IN THE CROPLAND FOR THE FARM AT THE TIME OF THE SIGNING OF THE AGREEMENT WHICH IS BROUGHT INTO CULTIVATION AND USED FOR THE PRODUCTION OF A CROP FOR HARVEST IN 1957: * * *

THE PROVISION PROPOSING TO AUTHORIZE WAIVERS IN CERTAIN CASES IS CONTAINED IN SECTION 485.240 OF THE REGULATIONS, AS AMENDED, WHICH PROVIDES:

THE ADMINISTRATOR, IN ORDER TO PREVENT UNDUE HARDSHIP, MAY WAIVE THE REQUIREMENTS OF ANY PROVISION OF THE REGULATIONS CONTAINED HEREIN OR IN THE AGREEMENT * * * IF SUCH WAIVER * * * IS NOT PROHIBITED BY LAW AND IF, IN HIS JUDGMENT, SUCH ACTION IS IN THE BEST INTERESTS OF THE PROGRAM. ANY SUCH WAIVER * * * SHALL BE IN WRITING AND SHALL CONTAIN A FULL STATEMENT OF THE REASONS THEREFOR. IF THE FACTS OR CIRCUMSTANCES ON WHICH THE REQUEST FOR A WAIVER * * * ARE BASED HAVE, OR ARE LIKELY TO HAVE GENERAL APPLICABILITY, RELIEF MAY NOT BE GRANTED UNDER THE PROVISIONS OF THIS SECTION BUT ONLY BY AN APPROPRIATE AMENDMENT TO THESE REGULATIONS.

THE STATUTORY AUTHORITY UNDER WHICH THE REGULATIONS WERE ISSUED IS CONTAINED IN SECTION 124 OF THE SOIL BANK ACT, PUBLIC LAW 540, APPROVED MAY 28, 1956, 70 STAT. 188, 198, 7 U.S.C. 1812, WHICH PROVIDES:

THE SECRETARY SHALL PRESCRIBE SUCH REGULATIONS AS HE DETERMINES NECESSARY TO CARRY OUT THE PROVISIONS OF THIS TITLE.

WHILE SECTION 124 GRANTS BROAD DISCRETIONARY AUTHORITY FOR PRESCRIBING REGULATIONS, IT IS NOT DISSIMILAR TO NUMEROUS PROVISIONS IN OTHER LEGISLATIVE ACTS AUTHORIZING THE ISSUANCE OF REGULATIONS. IT IS WELL ESTABLISHED IN ADMINISTRATIVE LAW THAT VALID STATUTORY REGULATIONS HAVE THE FORCE AND EFFECT OF LAW, ARE GENERAL IN THEIR APPLICATION, AND MAY NO MORE BE WAIVED THAN PROVISIONS OF THE STATUTES THEMSELVES. REGULATIONS MUST CONTAIN A GUIDE OR STANDARD ALIKE TO ALL INDIVIDUALS SIMILARLY SITUATED, SO THAT ANYONE INTERESTED MAY DETERMINE HIS OWN RIGHTS OR EXEMPTIONS THEREUNDER. THE ADMINISTRATIVE AGENCY MAY NOT EXERCISE DISCRETION TO ENFORCE THEM AGAINST SOME AND TO REFUSE TO ENFORCE THEM AGAINST OTHERS. SEE UNITED STATES V. RIPLEY, 7 PET. 18; UNITED STATES V. DAVIS, 132 U.S. 334; FEDERAL CROP INSURANCE CORPORATION V. MERRILL, 332 U.S. 380; SHERIDAN -1WYOMING COAL CO. V. KRUG, 172 F.2D 282; 31 COMP. GEN. 193, AND DECISIONS CITED THEREIN.

THE FOREGOING PRINCIPLES HAVE BEEN APPLIED BY PRIOR ACCOUNTING OFFICERS IN SITUATIONS WHERE THE REGULATIONS HAVE INCLUDED SPECIFIC WAIVER PROVISIONS. SEE 15 COMP. GEN. 869, WHEREIN IT WAS HELD THAT SECTION 2 OF TITLE I OF THE NATIONAL HOUSING ACT OF JUNE 27, 1934, 48 STAT. 1246, 12 U.S.C. 1703, DID NOT AUTHORIZE THE INCLUSION OF A WAIVER PROVISION IN THE REGULATIONS OF THE FEDERAL HOUSING ADMINISTRATOR. THE AUTHORITY TO WAIVE COMPLIANCE WITH THOSE REGULATIONS WAS THEREAFTER SPECIFICALLY GRANTED BY THE CONGRESS IN SECTION 4 (B) OF PUBLIC NO. 525, APPROVED APRIL 17, 1936, 49 STAT. 1232, 1234, 12 U.S.C. 1703 (E). SEE ALSO LETTERS OF JANUARY 10 AND MARCH 3, 1931, A-31197, TO THE SECRETARY OF THE TREASURY.

SECTION 485.240 OF THE REGULATIONS UNDER CONSIDERATION ATTEMPTS TO CREATE IN THE ADMINISTRATOR, COMMODITY STABILIZATION SERVICE, THE RIGHT TO WAIVE THE REQUIREMENTS OF ANY PROVISION OF THE REGULATIONS OR THE AGREEMENTS IN HARDSHIP CASES EVEN THOUGH SUCH ACTION MIGHT GIVE UP VESTED RIGHTS OF THE GOVERNMENT; MIGHT PERMIT PAYMENTS CONTRARY TO THE REGULATIONS OR AGREEMENT; WOULD BE TAKEN ON A CASE-BY-CASE BASIS; AND WOULD BE RETROACTIVE RATHER THAN PROSPECTIVE IN THAT THE ADMINISTRATOR, AFTER NONCOMPLIANCE, WOULD DETERMINE WHETHER TO WAIVE THE PERTINENT REGULATION. SUCH AUTHORITY IS CONTRARY TO THE PRINCIPLES REFERRED TO ABOVE AND NORMALLY ASSOCIATED WITH STATUTORY REGULATIONS THAT WE ARE CONVINCED THAT SUCH DISCRETIONARY AUTHORITY WAS CONTEMPLATED BY THE CONGRESS IN ENACTING SECTION 124 OF THE SOIL BANK ACT AND NUMEROUS SIMILAR PROVISIONS IN OTHER LAWS. WHILE SECTION 103 OF THE SOIL BANK ACT, 7 U.S.C. 1821, AUTHORIZES YOU TO INCLUDE IN THE ACREAGE RESERVE PROGRAM SUCH "TERMS AND CONDITIONS" AS YOU DEEM DESIRABLE TO EFFECTUATE THE PURPOSES OF THE SOIL BANK ACT AND TO FACILITATE THE PRACTICAL ADMINISTRATION OF THE ACREAGE RESERVE PROGRAM, WE DO NOT BELIEVE IT AUTHORIZES YOU TO INCLUDE IN THE REGULATIONS A FURTHER PROVISION AUTHORIZING THE WAIVER ON AN INDIVIDUAL CASE BASIS OF ANY "TERMS AND CONDITIONS" PRESCRIBED IN THE REGULATIONS. IN OUR VIEW, THE AUTHORITY TO REGULATE AND TO INCLUDE IN THE PROGRAM SUCH TERMS AND CONDITIONS AS THE ADMINISTRATOR DEEMS DESIRABLE FOR THE SPECIFIED PURPOSES DOES NOT NECESSARILY IMPLY AUTHORITY TO DISREGARD THOSE TERMS AND CONDITIONS THEREBY CREATING AN UNREGULATED AREA SUBJECT ONLY TO HIS DISCRETION. IF ANY AGENCY REQUIRES AUTHORITY TO WAIVE ITS STATUTORY REGULATIONS, WE BELIEVE THAT SPECIFIC STATUTORY AUTHORITY THEREFOR--- SIMILAR TO 12 U.S.C. 1703 (E) REFERRED TO ABOVE--- SHOULD BE REQUESTED FROM THE CONGRESS.

THE GENERAL COUNSEL OF THE DEPARTMENT OF AGRICULTURE, IN CONCLUDING THAT SECTION 485.216 OF THE REGULATION COULD BE WAIVED IN THE CASE SET OUT ABOVE, STATED IN HIS OPINION NO. 64, DATED MARCH 24, 1958, THAT THE LAST PARAGRAPH OF THE DECISION OF THIS OFFICE PUBLISHED AT 17 COMP. GEN. 566 RECOGNIZED THAT THE RULE CONCERNING THE NONWAIVERABILITY OF REGULATIONS HAS NO APPLICATION WHERE A PROVISION FOR HANDLING EXCEPTIONAL CASES IS CONTAINED IN THE REGULATIONS. THAT PARAGRAPHS READS:

HOWEVER, THE STATUTE AUTHORIZES YOU TO PRESCRIBE REGULATIONS GOVERNING THE MAKING OF ALLOTMENTS, AND THERE IS PERCEIVED NO OBJECTION TO SUCH AMENDMENT OR MODIFICATION OF THE EXISTING REGULATIONS AS WILL PERMIT REFERENCE OF EXCEPTIONAL CASES AS TO PAYMENT OF ALLOTMENTS TO YOU OR SOME OTHER OFFICIAL DESIGNATED FOR THAT PURPOSE. IF AND WHEN THE REGULATIONS ARE SO AMENDED OR MODIFIED YOU MAY THEN AUTHORIZE AN ALLOTMENT IN SUCH EXCEPTIONAL CASES AS ARE COVERED BY THE MODIFIED OR AMENDED REGULATIONS.

IT WAS CONCLUDED IN THAT DECISION THAT A STATUTORY REGULATION PROVIDING THAT " NO ALLOTMENT WILL BE PAID TO AN ALLOTTEE RESIDENT IN A FOREIGN COUNTRY" COULD NOT BE WAIVED. THE LAST PARAGRAPH MERELY SUGGESTED THAT THE REGULATION COULD BE AMENDED TO AUTHORIZE PAYMENT OF ALLOTMENTS TO ALLOTTEES RESIDENT IN FOREIGN COUNTRIES IN EXCEPTIONAL CASES IN THE FUTURE. THE FOREGOING PARAGRAPH DID NOT IMPLY THE WAIVER OF AN EXISTING REGULATION BUT RATHER ITS AMENDMENT THEREAFTER TO PERMIT OR DIRECT A DIFFERENT DISPOSITION OF SPECIFIED TYPES OF CASES. WE THEREFORE DO NOT REGARD THAT DECISION AS A RECOGNITION OF THE VALIDITY OF THE INCLUSION OF A GENERAL WAIVER PROVISION IN REGULATIONS SUCH AS SECTION 485.240 OF THE 1957 ACREAGE RESERVE REGULATIONS HERE INVOLVED.

THE GENERAL COUNSEL'S OPINION STATES THAT " UP TO THE PRESENT TIME, THE WAIVER PROVISIONS OF THE ACREAGE RESERVE REGULATIONS HAVE BEEN UTILIZED ONLY TO WAIVE SUCH MATTERS AS THE CLOSING DATE FOR FILING AGREEMENTS, THE FINAL DATE FOR OBTAINING THE SIGNATURE OF THE LANDLORD, AND CERTAIN TECHNICAL REQUIREMENTS OF THE REGULATIONS WHERE THE PURPOSE OF THE REQUIREMENT WAS OTHERWISE SATISFIED.' WHERE THE AGREEMENTS WERE ENTERED INTO IN GOOD FAITH AND ARE FULLY EXECUTED, WE WILL NOT QUESTION PAYMENTS THEREUNDER FOR THE SOLE REASON THAT THE CLOSING DATE FOR FILING AGREEMENTS OR THE FINAL DATE FOR OBTAINING THE SIGNATURE OF THE LANDLORD WERE NOT MET DUE TO SOME UNUSUAL CIRCUMSTANCES WHERE THE PURPOSE OF SUCH REQUIREMENTS WAS OTHERWISE SATISFIED. HOWEVER, WE DO NOT FIND IN SECTION 124 OR ELSEWHERE IN THE SOIL BANK ACT LANGUAGE WHICH IN OUR OPINION AUTHORIZES THE INCLUSION IN REGULATIONS ISSUED PURSUANT TO THE ACT OF A WAIVER PROVISION SUCH AS SECTION 485.240 OF THE REGULATIONS.

THEREFORE THE QUESTION PRESENTED BY YOU MUST BE ANSWERED IN THE NEGATIVE.