Public Participation in the Adoption of Interpretive Rules and Policy Statements

Section I of this article surveys the practices of a selected group of federal agencies in the adoption of interpretive rules and policy statements. It emphasizes the importance of these rules both to members of the public and to the administrative process. Section II analyzes the cases that have considered the AP A exemption of interpretive rules and policy statements from preadoption notice and comment procedures. These cases are in disarray for several reasons. For one thing, the bright lines traditionally assumed to distinguish interpretive rules and policy statements from legislative rules have become blurred and indistinct. Moreover, the courts have become sensitive to the public’s need to take part in the rule-making process and have increasingly required procedural innovations at the agency level. As section II shows, two inconsistent lines of case law have emerged. In one group of cases, the courts have analyzed the “legal effect” of the rule and have deferred to the agency’s own categorization of its rule. In the second group, the courts have concentrated on the practical effect of the rule and have required preadoption procedures for rules that have a “substantial impact” on the public. Unfortunately, the first group of cases fails to give sufficient attention to the public’s need to participate in the rule-making process, while the second is difficult to reconcile with the APA and produces unpredictable results. Section III of this article returns to the problem of the distinction between legislative and interpretive rules and emphasizes the increasing irrelevance of the distinction. Finally, section IV proposes a new postadoption procedure for the formulation of interpretive rules of general applicability and general policy statements. It is hoped that these procedures accommodate the conflicting needs of the public to influence agency nonlegislative rulemaking and of the agency to be free from excessive procedural rigidity.