come into play when railroads are directed to file The examples given in this quote tend to detract from Judge Bazelon's general proposition, which seems a useful one: that is, the exemption covers rules "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 76 agency. e. Interpretive rules and policy statements. 78 77 "Interpretative rules" and "general statements of policy" also are exempted from notice and comment requirements by section 553(b)(A). However, they are not exempted from section 55 3's petition provision or section 55 2's publication requirement, although they can be made effective upon publication in the Federal Register. The exemption was included out of concern that public participation procedures might be unnecessary or impede issuance of interpretive rules and policy statements, as well as fear that agencies would stop issuing such rules altogether." It is generally recognized that these terms 81 79 75/ 648 F.2d at 707-08 (citations omitted). 80 76/ For other discussions of the exemption, see G. Edles and J. Nelson, Federal Regulatory Process: Agency Practices and Procedures 54-56 (1981); 1 K. Davis, Administrative Law Treatise SS 6:30-6:31 (2d ed. 1978). 77/ 5 U.S.C. S 553(e) (1976). 78/ 5 U.S. C. S 552(a)(1)(D) (1976). 79/ 5 U.S.C. S 553(d)(2) (1976). 80/ Though the APA uses the term "interpretative," "interpretive" also has been used to describe these rules. See Asimow, Public Participation in the Adoption of Interpretive Rules and Policy Statements, 75 Mich. L. Rev. 521, 522 n. 6 (1977). We use the simpler term, "interpretive rule", in this guide. 81/ See Asimow, id. at 575. cover a broad range of agency pronouncements, and that it is desirable that they be issued to clarify the law and alert the public to agency positions. Additionally, these rules and statements are indispensible to agency administration: they guide the staff in their day-to-day tasks and structure the exercise of agency discretion." 83 82 The distinctions between "policy statements," "interpretive rules," and "substantive" or "legislative" rules' are easier to articulate than apply in particular cases. The Attorney General's Manual on the APA offered the following as working definitions: other than Substantive rules-rules, Interpretative rules-rules or statements issued General statements of policy-statements Of these types of actions, the most difficult distinction to draw is between interpretive and legislative rules. The test used in the District of Columbia Circuit for distinguishing between interpretive and legislative rules was first stated in Gibson Wine 85 Co. v. Snyder: 82/ See generally Asimow, id. at 521-530. 83/ The APA distinguishes "substantive rules" from other rules. Today the term "legislative rule" is often used in place of "substantive rule." "Substantive" is generally considered the converse of "procedural," yet interpretive rules and policy statements relate to substance even though they are "substantive rules" within the meaning of the APA. not 84/ Attorney General's Manual on the Administrative Procedure Act 30 n. 3 (1947). 85/ 194 F.2d 329, 331 (D.C. Cir. 1952). See also Citizens to Save (Continued) or Generally speaking, it seems to be established It should be noted-as recognized in the foregoing statement-that interpretive rules can interpret previously-adopted rules as well as 86 statutes. 88 Though the definitions of interpretive rules and legislative rules given above appear straightforward, the caselaw applying the exemption 87 and the commentary discussing it are confusing and contradictory. Part of the problem is that several factors come into play in the application of the interpretive rule exemption, and variations in the presence of these factors can cause the distinction between interpretive rules and legislative rules appear clear and sensible in some cases, but fuzzy and illogical in others. One factor important to the interpretive-legislative distinction is the existence, or lack thereof, of statutory authority for the agency to adopt legislative rules. If the agency lacks such authority, its rule can be only interpretive at best." In theory, an interpretive rule does not have the force and effect of law-that is, it is not binding on the public in agency proceedings, and it is entitled to less deference than a legislative rule by a reviewing 90 court. Though this distinction retains force in some situations, it 89 Spencer County v. EPA, 600 F.2d 844, 876 (D.C. Cir. 1979); Cabais v. Egger, 690 F.2d 234, 238 (D.C. Cir. 1982). 86/ See also Asimow, supra note 80, at 543. 87/ See Professor Davis summary of the caselaw, 2 K. Davis, Administrative Law Treatise SS 7:15-7:17 (2d ed. 1978). 88/ See authorities cited in Asimow, supra note 80, at 523 n. 9; S. Breyer and R. Stewart, Administrative Law and Regulatory Policy 238-39 (1979). 89/ See Batterton v. Marshall, 648 F.2d 694, 705 (D.C. Cir. 1980); 2 K. Davis, Administrative Law Treatise S 7:8, supra note 87, at p. 39. 90/ See, e.g., Chrysler Corp. v. Brown, 441 U.S. 281 (1978) (OFCCP regulations were either procedurally-defective legislative (Continued) is not often dispositive in exemption cases because it is now accepted that agencies can adopt legislative rules under general rulemaking delegations. 91 The theory that interpretive rules are entitled to less deference than legislative rules by reviewing courts also may have lost much of its practical significance. As Professor Asimow 92 observes, judicial scrutiny of legislative rules has become far more searching since the enactment of the APA; at the same time, judicial review of interpretive rules is far less intense than traditionally believed.93 An easy-but probably fairly rare-case applying the exemption would be one in which the agency labeled its rule "legislative," when in fact it lacked a statutory delegation of power 94 to adopt legislative rules. Another fairly easy case would be one in which the agency simply construes the language of the statute and does not seek to impose obligations that are not in the statute. That kind of rule would be upheld as an interpretive 95 rule. The most difficult cases to apply the legislativeinterpretive distinction are those in which the agency has the power to issue legislative rules, but the agency purports to adopt rules or interpretive rules; therefore, they could not be authorization "by law" within the meaning of the Trade Secrets Act). 91/ See Asimow, supra note 80, at 561-63; Chrysler Corp. v. Brown, 441 U.S. at 308. 92/ Id. at 563-64. 93/ Id. at 565 ("Indeed, the standard of judicial review [of interpretive rules] is sometimes stated in terms of whether a rule reasonably implements the statute-exactly the same test accorded legislative rules [citation omitted].") See also Ford Motor Credit Co. v. Milhollin, 444 U.S. 555 (1980) (Court acceptance of Federal Reserve Board interpretation of Truth in Lending Act). 94/ Most agencies operate under statutes containing a general rulemaking clause like the one in S 301(a)(1) of the Clean Air Act: "The Administrator is authorized to prescribe such regulations as are necessary to carry out his functions under [the Act]." See Citizens To Save Spencer County v. EPA, supra note 85, at 873. Implied rulemaking power may exist, depending on the terms of a statute. Id. at 874. 95/ See, e.g., Cabais v. Egger, supra note 85, at 238. an "interpretive rule" that does more than simply fill in the interstitial details necessary for implementing a relatively specific statute. Making the distinction between policy statements and legislative rules may be somewhat easier than distinguishing interpretive rules from legislative rules. As explained in the Attorney General's Manual, policy statements are "issued by an agency to advise the public prospectively of the manner in which 1196 the agency proposes to exercise a discretionary power. Often policy statements are issued to guide agency staff in administering 97 laws. Sometimes they are addressed to the public. As with interpretive rules, however, courts have had difficulty applying the policy statement-legislative rule distinction to particular agency actions.99 98 Of course, courts have not only been concerned about theoretical distinctions between interpretive rules, policy statements, and legislative rules. Beyond the labels, many of these actions are indistinguishable in their impact on the public. Some courts, therefore, explicitly rejected agency labels for their action and decided whether notice and comment should be required because of the magnitude of the rule's impact on the public. For example, the court in Pharmaceutical Manufacturers Association v. 100 Finch, concluded: Attempting to provide a facile semantic 96/ See text accompanying n. 84, supra. 97/ Audit policies are an example. See United States v. Fitch Oil Co., 676 F.2d 673 (T.E.C.A. 1982). 98/ For example, Action for Children's Television v. FCC, 564 F.2d 458 (1977), involved a challenge to the agency's issuance of a policy statement on children's television programming rather than a legislative rule as petitioned for by ACT. 99/ See Asimow, supra note 80, at 531-540. 100/ 307 F. Supp. 858 (D.Del. 1970). |