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

1. Exceptions to APA § 553’s “notice & comment” rulemaking requirements • Exceptions: • 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 the 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” • Guidance Documents: Internal manuals, directives etc. that provide agency personnel &/or the public with guidance about how the agency is likely to interpret a statute or rule

3. Why have interpretive rules, policy statements & guidance documents if they don’t bind the agency? • They instruct agency personnel how to apply broad/vague laws or regulations (guidance docs/policy manuals) • They may influence court’s interpretation of statutes/regs (all) • They inform the public as to the agency’s thoughts on: • the agency’s likely interpretation of a vague law/regulation (interpretive rule) • the agency’s application of policy in the future (policy statement) • Danger – agencies can 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through the Sec. 553 rulemaking process • See, e.g., Morton v. Ruiz – application of benefits eligibility guidelines in unpublished Manual as though they were binding

4. Implications of court finding that interpretive rule/policy statement is/is not a legislative rule: • If a court finds the agency has applied a pol’y statement/interpretive rule/guidance doc as a binding norm (i.e., like a legislative rule): • That particular agency action is invalid as applied to challenging party. • Court will force agency to use notice/comment procedures to enact legislative rules if agency wants to use binding norms in the future. • If a court finds the manual, etc. is not used as a “binding norm,” the issue in a particular challenge to the agency’s action is usually whether the agency’s interpretation of the law via those methods 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 deference is appropriate depending on whether interpretive rule/pol’y statement/guidance document is interpretinga reg or a statute

5. How do courts tell the difference between legislative rules and interpretive rules/policy statements - Sullivan? • Why was the “rule” in NFPRHA v. Sullivan a “legislative rule?” • 42 USC § 300a-6: No appropriated funds can 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 - Hoctor? • 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 are pragmatic – look to context and effect of agency action on regulated parties. Question can be framed as: • Will the interpretive rule/policy statement instill a course of conduct in regulated entities across a regulated sector that is not already contained in a legislative rule or congressional statute? • Don’t get too bogged down in labels like “legal effects test” & “substantial impact test” – better to understand factors courts apply and then know the label of the tests applied in the jurisdiction you are in • Significant considerations/factors: • 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) • Is there an independent basis for enforcement or benefits absent the rule?

8. Procedural rules vs. legislative rules • Sec. 553(b) exempts rules of agency organization, procedure & practice. Courts generally define procedural rules as: • Rules that do not alter the rights or interests of parties although they may alter the manner in which the parties present themselves or their viewpoints to the agency • Ex: rules re timing/format for presentation of arguments in hearings • Sometimes rules seem “procedural” but have a substantial impact on rights. In such cases, courts find 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 a binding legislative rule and had a substantial impact on prisoners’ rights (even though it was part of a “decision-making procedure”) • What about Lincoln v. Vigil?

9. Good Cause Exemption • Sec. 553(b)(3)(B) exempts rules from N&C reqm’ts where the agency “for good cause” finds that “notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” • Typical instances where exemption is successfully applied: • Where the public rulemaking process would actually undermine the rule – e.g., price control rule (public hearing would lead to price hikes before rule goes into effect). • National security/emergency rules – often enacted under the “public interest” prong • Some specifics re agency practice: • Sec. 553 REQUIRES that agencies “incorporate the finding [of good cause] and a brief statement of the reasons therefor in the rules issued” • Many agencies will ask for comments after the fact and consider changes to the rules later