Rulemaking and the Guidance Exemption

78 Pages Posted: 26 Apr 2017 Last revised: 31 Jan 2018

See all articles by Ronald M. Levin

Ronald M. Levin

Washington University in St. Louis - School of Law

Date Written: July 21, 2017

Abstract

The Administrative Procedure Act imposes a general obligation on federal agencies to use notice and comment procedures when they adopt rules, but it contains an exemption, § 553(b)(A), for two kinds of rules that lack the force of law — “interpretative rules [and] general statements of policy.” Questions pertaining to the application of this exemption may constitute the single most frequently litigated and important issue of rulemaking procedure in the federal courts today. This article undertakes a comprehensive examination of issues presented by the exemption and offers a unified framework for resolving them. The article deals with procedural questions only and does not address judicial review issues pertaining to these rules.

The draftsmanship of § 553(b)(A) has generally been read to imply that interpretive rules and policy statements should be analyzed separately for purposes of the exemption, and indeed two separate lines of cases have developed. However, the track records of those two bodies of case law have not proved equally satisfactory. The courts’ approach to policy statements is essentially coherent — more so than many scholars acknowledge. It revolves around the issue of whether a statement creates a “binding norm,” either legally or in practical effect. Much of the case law on policy statements applies the exemption more narrowly than I would endorse, but the tensions in the precedents result from understandable tradeoffs among competing values. Many of those same values are also reflected in best-practices recommendations adopted by government bodies and professional organizations. In contrast, the case law on interpretive rules is highly unsatisfactory. It is generally understood that an interpretive rule explains existing law instead of creating new law. However, the approaches by which courts apply this criterion are not only vague, but also lack credible policy justifications that would enable courts and agencies to find their way past the vagueness. The courts have identified several circumstances in which they can comfortably conclude that a given document is not an interpretive rule, but they lack workable criteria for determining what documents do fit that description.

I propose a simple fix for this difficulty: The “binding norm” principles that courts now use in the policy statement context should, for the most part, apply in the interpretive rule context as well. This consolidation would tend to simplify the law and would bring judicial doctrine into line with the increasing tendency among administrative lawyers to refer to nonbinding rules using the collective term “guidance.” Thus, we should think of these provisions in § 553(b)(A) as comprising, in a significant and not merely nominal sense, a single exemption — the guidance exemption.

Keywords: Administrative Law, Rulemaking, Nonlegislative Rules, Guidance Documents, Interpretive Rules, General Statements of Policy

Suggested Citation

Levin, Ronald M., Rulemaking and the Guidance Exemption (July 21, 2017). Administrative Law Review, Vol. 70, No. 2, 2018; Washington University in St. Louis Legal Studies Research Paper No. 17-04-05. Available at SSRN: https://ssrn.com/abstract=2958267 or http://dx.doi.org/10.2139/ssrn.2958267

Ronald M. Levin (Contact Author)

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States
314-935-6490 (Phone)
314-935-5356 (Fax)

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