A Primer on Nonlegislative Rules

Abstract:     
This article is derived from a panel presentation on interpretive rules at the Midyear Meeting of the Administrative Law and Regulatory Practice Section of the American Bar Association in February 2001. The article provides a description and analysis of the existing "law" regarding nonlegislative rules adopted by federal administrative agencies, that is, intepretative rules and statements of policy as used in the federal administrative procedure act. This description and analysis includes discussion of how courts determine when a rule is legislative or nonlegislative, what deference courts give to nonlegislative rules, and when preenforcement challenges are ripe for judicial review. The article then addresses the presentations of Professors Peter Strauss and Robert Anthony and Mr. Randy May, in which among other things the article suggests certain problems with Professor Strauss's use of the term "publication rules" in place of nonlegislative rules.

Number of Pages in PDF File: 27

Keywords: interpretative rules, nonlegislative rules, administrative law

JEL Classification: K230

working papers series