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
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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
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.
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.
So how and interpretive rules/policy statements - 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
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?
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”)