RULEMAKING AND THE GUIDANCE EXEMPTION

• 成果类型: Article
• 署名作者: Levin, Ronald M.
• 署名单位: Washington University (WUSTL)
• 刊物名称: ADMINISTRATIVE LAW REVIEW
• ISSN/ISSBN: 0001-8368
• 发表日期: 2018
• 页码: 263-359
• 关键词: ADMINISTRATIVE-LAW; interpretative rules; PUBLIC-PARTICIPATION; nonlegislative rules; general statements; legislative rules; policy statements; chevron; CHOICE

摘要

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, & sect; 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 & sect; 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 result. 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 nom 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 & sect; 553 (b)(A) as comprising in a significant and not merely nominal sense, a single exemption-the guidance exemption.