The Notice Requirement in Administrative Rulemaking: An Analysis of Legislative and Interpretive Rules

At its Fifteenth Plenary Session, held December 9-10, 1976, the Administrative Conferences of the United States adopted Recommendation 76-5, which urged federal agencies to utilize the procedures set forth in subsection 4(b) and (c) of the Administrative Procedure Act of 1946 (the APA) before they issue, amend or repeal an interpretive rule of general applicability which is likely to have a substantial impact on the public. This would be accomplished by publishing each interpretive rule in the Federal Register, with a concise statement of its basis and purpose and an invitation for written comments. While the differences give rise to legal consequences of crucial importance to the administrative lawyer, many administrative agencies have indiscriminately mingled “legislative” and “interpretive” rules in such a way as to make their use and understanding very difficult. The relevance of the distinction, found in Section 4 of the APA, is that an agency is not required to provide notice or an opportunity to participate to interested parties before issuance of an “interpretive rule” (unless otherwise required by statute), whereas an agency must do so before issuance of a “substantive” rule. Agencies traditionally have exercised broad discretion in their characterizations of agency action. In this article, the author addresses whether an agency’s failure to afford minimal procedural protections to the public is a violation of Section 4 of the APA. After defining the two types of regulations, the author considers the origin of the distinction. He then discusses the procedural protection afforded through the embodiment of the distinction in the APA. Finally, the author analyzes in-depth the judicial interpretations of Section 4. Although certainty in recognizing a legislative rule or an interpretive rule will always be difficult to achieve, his analysis of the distinction provides a considerable degree of predictability.