Exceptions to APA § 553’s “notice & comment” rulemaking requirements

1. Exceptions to APA § 553’s “notice & comment” rulemaking requirements • Exceptions: • Sec. 553(a) - Rules re military/foreign affairs/agency management issues • Sec. 553(b) - Interpretive rules & policy statements • Sec. 553(b) – Rules of agency organization, procedure & practice • Sec. 553(b) – When agency for good cause finds that notice/comment is impracticable, unnecessary or contrary to public interest • Why does Section 553(b) allow an agency to avoid the notice and comment procedure with such rules? • What kind of tension does distinction between substantive and other rules cause?

2. Substantive rules, policy statements & interpretive rules – how are they different? • Legislative Rule: Establishes a standard of conduct which has the force of law - it is finally determinative of the rights/issues to which it is addressed • Pol’y Statement: Publicly announces policy that agency hopes to implement but does not establish a “binding norm” for use in present situation • Interpretive Rule: Describes, clarifies, and reminds the public of a statutory standard or pre-existing rule - does not establish a “binding norm”

3. Why have interpretive rules & guidance documents if they don’t bind the agency? • They instruct agency personnel how to apply broad/vague laws or regulations • They may influence court’s interpretation of statutes • They inform the public as to the agency’s thoughts on: • How agency is likely to interpret a vague law/regulation (interpretive rule) • How agency will apply policy in the future (policy statement) • There is danger here though – agencies sometimes come to rely on these informal statements as “binding norms” and try to apply them as “legislative rules” despite not having gone through the Sec. 553 rulemaking process.

4. Implications of court finding that interpretive rule/policy statement is/is not a legislative rule: • If court finds agency has applied a pol’y statement/interpretive rule as a binding norm (i.e., like a legislative rule): • Court will find agency action pursuant to interpretive/pol’y statement (“rule”) invalid as applied to challenging party and force the agency to have those “rules” enacted through notice/comment procedures if they want to use that “rule” as a binding norm in the future. • If court finds pol’y statement/interpretive rule is not being used as a “binding norm” (i.e., legislative rule), the issue in any particular challenge to the agency’s action pursuant to those interpretations becomes whether the interpretation is “legitimate.” • Court must decide what “deference” it should give to that interpretation of the agency’s regulation or of the statute • Auer or Mead/Skidmore depending on what the interpretive rule/pol’y statement is interpreting.

5. How do courts tell the difference between legislative rules and interpretive rules/policy statements? • Why was the rule in NFPRHA v. Sullivan a “legislative rule?” • 42 USC § 300a-6: No appropriated funds to be used in programs where abortion is a method of family planning. • HHS reg (1988): Clinics receiving funds “may not provide counseling concerning the use of abortion as a method of family planning or provide referral for abortion as a method of family planning.” • Interpretive directive (1991) – HHS reg should not be interpreted as preventing a woman from receiving complete medical information about her condition from a physician including information about abortion.

6. How do courts tell the difference between legislative rules and interpretive rules/policy statements? • Why was the rule in Hoctor v. USDA a “legislative rule?” • 7 USC §§2141/2143: USDA can enact rules and formulate standards re the “humane handling, care, treatment & transportation” of animals by dealers,” including “minimum standards for handling, housing, feeding, watering, & sanitation.” • 9 C.F.R. § 3.125(a) – “the [housing] facility must be constructed of such material and of such strength as appropriate for the animals involved. The indoor and outdoor housing facilities shall be structurally sound and shall be maintained in good repair to protect the animals from injury and to contain the animals." • Internal interpretive memo - All "dangerous animals" (including lions, tigers, and leopards) must be inside a perimeter fence at least eight feet high.

7. So how do courts distinguish between legislative & interpretive rules/policy statements? • Courts tend to be pragmatic in making the distinction – look to the context and effect of agency action on regulated parties. • Will the interpretive rule/policy statement instill a course of conduct in regulated entities across a regulated sector that is not already otherwise contained in a legislative rule or congressional statute? • Significant considerations: • How does the agency characterize its actions (binding or not)? • How does the agency apply the interpretation/pol’y? • Does the interpretation/pol’y purport to be binding by its text? • Does the action signal a major change from existing rule? • This can be an addition (supplementation) that one cannot easily read into the rule or a total about face)

8. Procedural rules vs. legislative rules • Sec. 553(b) exempts rules of agency organization, procedure & practice. How to tell the difference? Courts generally define procedural rules as: • Those rules that do not themselves alter the rights or interests of parties (like legislative rules do) but which may alter the manner in which the parties present themselves or their viewpoints to the agency • Example – rules re the timing and format for presentation of arguments in hearings • Sometimes things that seem “procedural” have a substantial impact on people’s rights and courts will find such rules are “legislative.” • Example – Pickus v. US, 507 F.2d 1107 (D.C. Cir. 1974) – Rule setting out mechanical formula for determining time when a prisoner could be paroled was used as a binding legislative rule and had a substantial impact on prisoners’ rights (even though it was part of a “decision-making procedure”).