The George Washington Law Review

for the Court to hesitate before attempting to adopt mandatory rulemakingcriteria, contrary to the settled principles of Chenery II.

I. Legislative and Nonlegislative Rules

Although the connection is often overlooked, I argue here that the insti-tutional concerns quite similar to those raised by the nondelegation doctrineand Chenery II are also relevant to the D.C. Circuit's "nonlegislative rule"jurisprudence. 12 Just as courts are reluctant to second-guess the degree ofpolicymaking discretion left to agencies under the nondelegation doctrineand Chenery II, they should hesitate before invalidating a nonlegislative ruleon the ground that it reflects an impermissible degree of policymakingoutside the process of notice-and-comment rulemaking. Before elaboratingon this comparison, it is necessary to give some background about the pre-sent controversy surrounding legislative rules.

The difficulties associated with nonlegislative rules arise primarily be-cause the APA confers upon agencies a relatively undefined authority to pro-ceed through either the more structured process of notice-and-commentrulemaking or the more informal processes associated with adopting nonleg-islative rules. As noted, § 553 of Title 5 imposes notice-and-comment proce-dures as the default position for rulemaking under the APA.113 "Legislativerules" promulgated by that method bind with the force of statutes.11 4 Thenotice-and-comment requirements, however, contain exceptions, inter alia,for two classes of nonlegislative rules-"[i]nterpretative rules" and "generalstatements of policy."' 15 Such rules come in a variety of familiar formats-including circulars, bulletins, guidance documents, opinion letters, staffmanuals, and the like.1 16 Because such rules avoid (increasingly) cumber-some notice-and-comment procedures, they represent a relatively low-costand flexible way for agencies to articulate their positions, at least in tentativeterms. 117 Indeed, nonlegislative rules potentially allow agencies to supply

112 The conceptual similarity of the nondelegation and nonlegislative rule problems is notalways overlooked. See, e.g., David J. Barron & Elena Kagan, Chevron's Nondelegation Doc-trine, 2001 Sup. CT. REV. 201, 204 (discussing the availability of deference to informal, staff-driven agency decisionmaking in terms of the values promoted by the nondelegation doctrine);Peter L. Strauss, Publication Rules in the Rulemaking Spectrum: Assuring Proper Respect for anEssential Element, 53 ADMIN. L. REV. 803, 839 (2001) (analogizing nonlegislative rule issues tothe nondelegation question); Strauss, supra note 110, at 1478 (same).

113 5 U.S.C. § 553(b), (c) (2000).114 See infra text accompanying note 191.115 5 U.S.C. § 553(c)(A). That provision also exempts "rules of agency organization, proce-

dure, or practice." Id. While that exemption provides its own set of important questions, theyare for another day.

116 See, e.g., Robert A. Anthony, A Taxonomy of Agency Rules, 52 ADMIN. L. REV. 1045,1046 (2000) (describing various forms of nonlegislative rules).

117 The development of the "hard look" doctrine has greatly increased the cost of notice-and-comment rulemaking by intensifying the agencies' obligation to release material data as partof the relevant notice, to create a rulemaking "record" for judicial review, and to respond toimportant issues raised during the comment period. See, e.g., Richard J. Pierce, Jr., Seven Waysto Deossify Agency Rulemaking, 47 ADMIN. L. REV. 59, 65 (1995) (lamenting the effects of hard-look review); Thomas 0. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process,41 DUKE L.J. 1385, 1385 (1992) (same). Some believe that the rise of hard-look review has led

[Vol. 72:893

2004] Nonlegislative Rules

often far-flung staffs with needed direction and, equally important, to givethe public valuable notice of anticipated policies.' 18 Such rules thus play animportant role in administrative practice.1 19

At the same time, because agencies often adopt nonlegislative rules thatlook and feel very much like legislative rules, the APA's procedural excep-tion for such rules risks allowing agencies to circumvent the notice-and-com-ment process. As the D.C. Circuit has observed:

The phenomenon.., is familiar. Congress passes a broadly wordedstatute. The agency follows with regulations containing broad lan-guage, open-ended phrases, ambiguous standards and the like.Then as years pass, the agency issues circulars or guidance or mem-oranda, explaining, interpreting, defining and often expanding thecommands in the regulations. One guidance document may yieldanother and then another and so on. Several words in a regulationmay spawn hundreds of pages of text as the agency offers more andmore detail regarding what its regulations demand of regulated enti-ties. Law is made, without notice and comment, without public par-

agencies to rely increasingly upon nonlegislative rules. See, e.g., Todd Rakoff, The Choice Be-tween Formal and Informal Modes of Administrative Regulation, 52 ADMIN. L. REV. 159, 166-67(2000).

118 See, e.g., Hoctor v. USDA, 82 F.3d 165, 167 (7th Cir. 1996) ("It would be no favor to thepublic to discourage the announcement of agencies' interpretations by burdening the interpre-tive process with cumbersome formalities."); Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 949(D.C. Cir. 1987) ("We recognize that such guidelines have the not inconsiderable benefits ofapprising the regulated community of the agency's intentions as well as informing the exercise ofdiscretion by agents and officers in the field."). As my colleague Peter Strauss has written:

Agency administration is aided when central officials can advise responsible bu-reaucrats how they should apply agency law. Citizens are better off if they canknow about these instructions and rely on agency positions, with the assurance ofequal treatment such central advice permits, than if they are remitted to the discre-tion of local agents and to "secret law."

Strauss, supra note 112, at 808. In particular, the agency staff frequently relies on nonlegislativerules to fill in the details of performance standards adopted by the agency through notice-and-comment rulemaking. See id. at 813-14. According to Professor Strauss, this function may haveadded salience for technical standard-setting agencies such as the Nuclear Regulatory Commis-sion, whose license applicants benefit greatly from having clear notice of the technical specifica-tions that will help assure success in a costly licensing process. See Strauss, supra note 110, at1481.

119 In volume, an agency's production of interpretive rules or policy statements typicallyoverwhelms its output of notice-and-comment rules. See Strauss, supra note 110, at 1463,1468-69. As Professor Strauss elaborates:

Here are three such comparisons that personal contacts permitted me to make withrelative ease: (1) formally adopted regulations of the Internal Revenue Service oc-cupy about a foot of library shelf space, but Revenue Rulings and other similarpublications, closer to twenty feet; (2) the rules of the Federal Aviation Administra-tion (FAA), two inches, but the corresponding technical guidance materials, well inexcess of forty feet; (3) finally, Part 50 of the Nuclear Regulatory Commission'sregulations on nuclear power plant safety ... consumes three-sixteenths of an inch,while the supplemental technical guidance manuals and standard reactor plans ...stack up to nine and three-fourths inches.

Id. at 1469.

The George Washington Law Review

ticipation, and without publication in the Federal Register or theCode of Federal Regulations.120

For those reasons, the D.C. Circuit has taken pains to develop criteria todelineate the functions that nonlegislative (as opposed to legislative) rulescan properly perform.121 As discussed below, those criteria seek to ensurethat genuine agency lawmaking-if effected by rulemaking instead of adjudi-cation-emerges from the notice-and-comment process, rather than the moreinformal and often staff-driven process of adopting nonlegislative rules.122

Hence, the pertinent case law finds its motivation in the same general im-pulse that underlies the nondelegation doctrine and the criticism of CheneryII-an objective to push policymaking upward into more formal, pluralistic,and accountable processes rather than allowing it to occur on the cheapthrough less formal methods.

It is perhaps not surprising, therefore, that the D.C. Circuit's nonlegisla-tive rule jurisprudence also seems to produce some of the same judicial man-ageability concerns that mark the other two areas. Under the court'sframework, an agency may use a "general statement of policy" to announcepolicymaking initiatives, but only if the resulting document is wholly non-binding.1 23 If an agency wishes to promulgate a more binding directive, itmay use an "interpretative rule," but only if the agency's position can becharacterized as an "interpretation" of a statute or legislative regulationrather than as an exercise of independent policymaking authority. 24

I argue here that because an agency's power to adopt meaningfully bind-ing nonlegislative rules thus turns on distinguishing interpretation from poli-cymaking, the resulting inquiry involves a question of degree perhaps no lesselusive than the inquiries described above. 125 Modern interpretive theoryrecognizes that virtually all (binding) interpretation entails at least some in-terstitial lawmaking, and the validity of an interpretative rule thus ultimatelyturns on a judicial determination that an agency has exercised too much poli-cymaking discretion in adopting such a rule.' 26 Perhaps reflecting the resul-tant absence of judicially manageable standards, the D.C. Circuit has frankly

120 Appalachian Power Co. v. EPA, 208 F.3d 1015, 1020 (D.C. Cir. 2000).121 See infra Part II.A.122 In academic writing, this concern comes through most forcefully in the influential work

of Professor Robert Anthony. See, e.g., Robert A. Anthony, Three Settings in Which Nonlegisla-tive Rules Should Not Bind, 53 ADMIN. L. REV. 1313, 1313 (2001); Robert A. Anthony, TheSupreme Court and the APA: Sometimes They Just Don't Get It, 10 ADMIN. L.J. AM. U. 1, 4(1996); Robert A. Anthony, "Interpretive" Rules, "Legislative" Rules and "Spurious" Rules: Lift-ing the Smog, 8 ADMIN. L.J. AM. U. 1, 4 (1994) [hereinafter Anthony, Lifting the Smog]; RobertA. Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals, and the Like-ShouldFederal Agencies Use Them to Bind the Public?, 41 DUKE L.J. 1311, 1312 (1992); Robert A.Anthony, Which Agency Interpretations Should Bind Citizens and the Courts?, 7 YALE J. ONREr. 1, 2 (1990).

123 See infra text accompanying notes 130-35.124 See infra text accompanying notes 138-55.125 See supra text accompanying notes 44-46, 97-111.126 See infra Part ll.B.

[Vol. 72:893

Nonlegislative Rules

acknowledged considerable confusion and tenuousness in the lines drawn byits cases. 127

This Part explores the criteria employed by the D.C. Circuit in sortinglegislative from nonlegislative rules. It suggests that much like the other doc-trines considered in this Article, efforts to review the procedural validity of anonlegislative rule inevitably necessitates difficult line-drawing. In part be-cause the case law's underlying principles shift periodically, my purpose isnot to give a comprehensive account of D.C. Circuit's precedents, but ratherto provide examples that permit consideration of the court's efforts to find aprincipled line. Moreover, in analyzing the court of appeals' case law, I holdconstant the court's apparent assumption that the procedural validity of anonlegislative rule is independent of the standard of deference used by courtsto review the substance of such a rule. Accordingly, I defer direct considera-tion of standard-of-review questions until Part 111.128

A. Identifying Nonlegislative Rules

As the case law is less than perfectly clear, I engage in some necessarysimplification to sharpen the conceptual concerns fairly raised by the D.C.Circuit's jurisprudence. The central inquiry in all nonlegislative rule cases isthis: Is the agency document, properly conceived, a legislative rule that isinvalid because it did not undergo notice-and-comment procedures, or aproper interpretative rule or general statement of policy exempt from suchprocedures? The resulting inquiry asks two intertwined questions-whetherthe norm embodied in a document is "binding" and, if so, whether theagency's position can be described as "interpretation" rather than lawmak-ing.129 Because these related inquiries bear crucially on the judicial manage-

127 See, e.g., Air Transp. Ass'n of Am., Inc. v. FAA, 291 F.3d 49, 55 (D.C. Cir. 2002) ("Thedistinction between a substantive rule and an interpretive rule can be less than clear-cut.");Syncor Int'l Corp. v. Shalala, 127 F.3d 90, 93 (D.C. Cir. 1997) ("We have long recognized that itis quite difficult to distinguish between substantive and interpretative rules."); Orengo Caraballov. Reich, 11 F.3d 186, 194 (D.C. Cir. 1994) ("The distinction between rules or statements whichare subject to the notice and comment requirements of § 553 and rules or statements which areexempt from those procedures is notoriously 'hazy.'" (quoting Am. Hosp. Ass'n v. Bowen, 834F.2d 1037, 1045 (D.C. Cir. 1987))); Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 946 (D.C. Cir.1987) ("The distinction between legislative rules and interpretative rules or policy statements hasbeen described at various times as 'tenuous,' 'fuzzy,' 'blurred,' and, perhaps most picturesquely,'enshrouded in considerable smog."' (citations omitted)); see also, e.g., Anthony, Lifting theSmog, supra note 122, at 4 (discussing judicial acknowledgments of confusion); Richard J. Pierce,Jr., Distinguishing Legislative Rules from Interpretative Rules, 52 ADMIN. L.J. 547, 548 (2000)(noting that the "case law in this area is characterized by a great deal of unnecessary confusionand inconsistency").

128 I do invoke standards of review in this Part, but only indirectly. In particular, in PartII.B, I rely on the conceptual insights of Chevron U.S.A., Inc. v. Natural Resources DefenseCouncil, Inc., 467 U.S. 837 (1984), to analyze the D.C. Circuit's purported distinction betweeninterpretation and lawmaking.

129 As discussed below, these questions are used to determine (1) whether an agency docu-ment can be sustained as "general statement of policy" and, if not, (2) whether it can nonethelesssurvive as an "interpretative rule." Commentators have divided on the question whether thereare sound analytical reasons for treating the two exceptions as distinct. Compare, e.g., Anthony,Lifting the Smog, supra note 122, at 7-12 (arguing that interpretative rules can bind the publicbut that policy statements cannot), with Charles M. Koch, Public Procedures for the Promulga-

2004]

The George Washington Law Review [Vol. 72:893

ability concerns posed by the D.C. Circuit's case law, brief elaboration isnecessary.

Under the law of the D.C. Circuit, if an agency wishes to adopt a "gen-eral statement of policy," the resulting document cannot have a "binding"legal effect.130 Although rarely discussed in explicit terms, the apparent ra-tionale is straightforward: If an agency is announcing its future intentions intentative terms, how can anyone object to its doing so without the formalitiesof notice-and-comment rulemaking? Conversely, if an agency rule couldmake legally binding policy without going through those formalities, whatincentive would it have to invoke the more cumbersome procedures? Ac-cordingly, a policy statement's validity hinges quite directly on the agency'sintention-or, more accurately, its lack of intention-to bind either itself orthe public.1 3 ' If a would-be policy statement uses "mandatory, definitive lan-guage," the court of appeals will likely invalidate it.132 A policy statement,

tion of Interpretative Rules and General Statements of Policy, 64 GEO. L.J. 1047, 1051-52 (1976)("Although attempts have been made to distinguish the two, there appears to be no analyticalpurpose served by such a distinction ...."), and Strauss, supra note 112, at 815-16 (treating bothtypes of nonlegislative rules as conceptually similar).

The question whether the two exceptions should be treated as distinct is beyond this Arti-cle's scope. For purposes of assessing the D.C. Circuit's nonlegislative rule cases, it suffices tonote that the two categories are analytically intertwined: A policy statement cannot be binding; abinding interpretative rule cannot reflect the exercise of delegated policymaking authority. It isworth noting, however, that the APA explicitly treats the two categories as distinct. See 5 U.S.C.§ 553(b)(B) (2000). The influential Attorney General's Manual on the Administrative ProcedureAct, moreover, lends support to the presence of a distinction. See U.S. DEP'T OF JUSTICE, AT-TORNEY GENERAL'S MANUAL ON THE ADMINISTRATIVE PROCEDURE ACT 30 n.3 (1947). Specif-ically, it defines "[i]nterpretative rules" as "rules or statements issued by an agency to advise thepublic of the agency's construction of the statutes and rules which it administers." Id. The man-ual then defines "[g]eneral statements of policy" as "statements issued by an agency to advise thepublic prospectively of the manner in which the agency proposes to exercise a discretionarypower." Id. The Attorney General's Manual was prepared by the Department of Justice contem-poraneously with the APA's enactment, and the Court has indicated that the manual meritsinterpretive weight because of the Department's role in the statute's drafting. See, e.g., ChryslerCorp. v. Brown, 441 U.S. 281, 302 n.31 (1979) (noting that the manual merits "some weight" ininterpreting the APA); Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435U.S. 519, 546 (1978) (describing the Attorney General's Manual as "a contemporaneous interpre-tation previously given some deference by this Court because of the role played by the Depart-ment of Justice in drafting the legislation").

130 The leading case is Pacific Gas & Electric Co. v. FPC, 506 F.2d 33, 38 (D.C. Cir. 1974).131 See, e.g., U.S. Tel. Ass'n v. FCC, 28 F.3d 1232 (D.C. Cir. 1994) (noting that the court has

"said repeatedly" that the line between an invalid legislative rule and a valid policy statement"turns on an agency's intention to bind itself to a particular legal position"); Pub. Citizen, Inc. v.U.S. Nuclear Regulatory Comm'n, 940 F.2d 679, 681-82 (D.C. Cir. 1991) ("In determiningwhether an agency statement is a substantive rule, which requires notice and comment, or apolicy statement, which does not, the ultimate issue is 'the agency's intent to be bound."' (quot-ing Vietnam Veterans of Am. v. Sec'y of the Navy, 843 F.2d 528, 538 (D.C. Cir. 1988))).

132 Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 947 (D.C. Cir. 1987); see also, e.g., Pac.Gas & Elec., 506 F.2d at 42 (asking whether the policy statement is "couched in terms of com-mand" (internal quotation omitted)). For example, if a document uses words like "will" insteadof "may" to describe the agency's plans, the court is apt to see it as an invalid legislative rulerather than a valid policy statement. See, e.g., Appalachian Power Co. v. EPA, 208 F.3d 1015,1023 (D.C. Cir. 2000) ("[T]he entire Guidance [Document], from beginning to end-except thelast paragraph-reads like a ukase. It commands, it requires, it orders, it dictates."); McLouthSteel Prods. Corp. v. Thomas, 838 F.2d 1317, 1320-21 (D.C. Cir. 1988) ("The use of the word

2004] Nonlegislative Rules

moreover, must "'genuinely leave[ ] the agency ... free to exercise discre-tion." 133 So if a pattern of applications suggests that an agency considersitself bound in practice, the court will treat a would-be policy statement as aninvalidly adopted legislative rule. 134 In short, as the D.C. Circuit's leadingcase has emphasized:

When the agency applies [a general statement of] policy in a partic-ular situation, it must be prepared to support the policy just as if thepolicy statement had never been issued. An agency cannot escapeits responsibility to present evidence and reasoning supporting itssubstantive rules by announcing binding precedent in the form of ageneral statement of policy.1 35

In light of the foregoing limitations on policy statements, if an agencywishes to adopt a discretion-limiting rule outside the notice-and-commentprocess, it must be able to characterize the document as an "interpretativerule. ' 136 As the D.C. Circuit has explained:

[R]estricting discretion tells one little about whether a rule is inter-pretive. Nor is there much explanatory power in any distinctionthat looks to the use of mandatory as opposed to permissive lan-guage. While an agency's decision to use "will" instead of "may"may be of use when drawing a line between policy statements andlegislative rules, the endeavor miscarries in the interpretive/legisla-tive rule context. Interpretation is a chameleon that takes its colorfrom its context; therefore, an interpretation will use imperative lan-guage-or at least have imperative meaning-if the interpreted

'will' suggests the rigor of a rule, not the pliancy of a policy."); Am. Bus. Ass'ns v. United States,627 F.2d 525, 532 (D.C. Cir. 1980) (noting that the putative policy statement "repeatedly saysand implies 'the Commission will'; it nowhere says or implies 'the Commission may"').

133 Alaska v. U.S. Dep't of Transp., 868 F.2d 441, 445-46 (D.C. Cir. 1989) (quoting Cmty.Nutrition Inst., 818 F.2d at 945-46) (ellipsis in original).

134 In U.S. Telephone Ass'n v. FCC, 28 F.3d 1232, 1233 (D.C. Cir. 1994), the court invali-dated guidelines for the imposition of fines on FCC licensees who violated various provisions ofthe Communications Act. Although the agency defended its "monetary forfeiture[ ]" scheduleas a nonbinding general statement of policy, Judge Silberman's opinion for the court consideredthe agency's actual practice under the guidelines. Id. He emphasized that "[t]he schedule offines has been employed in over 300 cases and only in 8 does the Commission even claim that itdeparted from the schedule." Id. at 1234. After careful analysis of the eight cases, the courtconcluded that only one plausibly reflected the agency's exercise of discretion to depart from thepolicy statement. See id. at 1234-35. Accordingly, the court concluded that the agency's practicebelied its "assertion that it intended not to be bound by the forfeiture standards." Id. at 1235; seealso, e.g., Gen. Elec. Co. v. EPA, 290 F.3d 377, 385 (D.C. Cir. 2002) (noting that "the EPA doesnot contend that in practice it has not treated the Guidance Document as binding").

135 Pac. Gas & Elec., 506 F.2d at 38-39 (footnote omitted).136 For many years, the D.C. Circuit simply lumped interpretative rules with policy state-

ments. See, e.g., Molycorp, Inc. v. EPA, 197 F.3d 543, 546 (D.C. Cir. 1999) (discussing the court'soccasional failure to differentiate interpretative rules from policy statements); Syncor Int'l Corp.v. Shalala, 127 F.3d 90, 94 (D.C. Cir. 1997) (same). Accordingly, one finds the occasional D.C.Circuit opinion suggesting that a valid interpretative rule will lack a "binding" effect. See, e.g.,Kelley v. EPA, 15 F.3d 1100, 1108 (D.C. Cir. 1994); Cmty. Nutrition Inst., 818 F.2d at 945-46;Nat'l Ass'n of Regulatory Util. Comm'rs v. U.S. Dep't of Energy, 851 F.2d 1424, 1431 (D.C. Cir.1988). As discussed below, a lack of binding effect is no longer the distinguishing feature ofinterpretative rules. See infra note 137 and accompanying text.

The George Washington Law Review

term is part of a command; it will use permissive language-or atleast have a permissive meaning-if the interpreted term is in a per-missive provision.1 37

In light of those premises, the D.C. Circuit asks whether a nominal "in-terpretative rule," in fact, merely interprets a statute or legislative regulationrather than makes new law.138 Although there are no fixed criteria for draw-ing that line, the court of appeals has articulated various tests to assist itsdetermination. For example, if the rule invokes "specific statutory provi-sions, and its validity stands or falls on the correctness of the agency's inter-pretation of those provisions," the court may deem it a proper interpretativerule. 139 Similarly, if the rule's justification consists of "reasoned statutory in-terpretation, with reference to the language, purpose, and legislative history"of the relevant provision, the court is more apt to view it as an interpretativerule. 140 Or, if a rule merely "clarifies a statutory term" or "reminds parties ofexisting statutory duties," it is an interpretative rule. 141

Conversely, the court is more likely to deem something a "legislativerule" when it "is based on an agency's power to exercise its judgment as tohow best to implement a general statutory mandate."'1 42 Thus, "an agencycan declare its understanding of what a statute requires without providingnotice and comment, but an agency cannot go beyond the text of a statuteand exercise its delegated powers without first providing adequate notice andcomment."' 43 In other words, an interpretative rule cannot reflect anagency's exercise of independent policymaking discretion.

As Judge Williams suggested in his influential opinion for the court inAmerican Mining Congress v. Mine Safety and Health Commission,144 identi-fying the relevant line will sometimes be fairly obvious from context; certaincircumstances demand the use of legislative rules per se.' 45 For example, ifthe organic act conditions the agency's legal authority on its adopting a legis-lative rule, the agency may not implement the statute by adopting an inter-

137 Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106, 1111 (D.C. Cir.1992) (citations omitted).

138 See, e.g., Orengo Caraballo v. Reich, 11 F.3d 186, 195 (D.C. Cir. 1993) ("Ultimately, aninterpretative rule simply indicates an agency's reading of a statute or a rule."); Gen. MotorsCorp. v. Ruckelshaus, 742 F.2d 1561, 1565 (D.C. Cir. 1984) (en banc) ("[I1f by its action theagency intends to create new law, rights or duties, the rule is properly considered to be a legisla-tive rule."); Gibson Wine Co. v. Snyder, 194 F.2d 329, 331 (D.C. Cir. 1952) ("Generally speaking,... 'regulations', 'substantive rules' or 'legislative rules' are those which create law, usually im-plementary to an existing law; whereas interpretative rules are statements as to what the admin-istrative officer thinks the statute or regulation means.").

139 United Techs. Corp. v. EPA, 821 F.2d 714, 719-20 (D.C. Cir. 1987).140 Gen. Motors, 742 F.2d at 1565; see also United Techs. Corp., 821 F.2d. at 720 (noting that

an agency rule qualified as an interpretative rule because its validity "depend[ed] on whether ornot the Agency ha[d] correctly interpreted congressional intent").

141 Nat'l Family Planning & Reprod. Health Ass'n v. Sullivan, 979 F.2d 227, 236 (D.C. Cir.1992).

142 United Techs. Corp., 821 F.2d at 720.143 Fertilizer Inst. v. EPA, 935 F.2d 1303, 1308 (D.C. Cir. 1991).144 Am. Mining Cong. v. Mine Safety & Health Admin, 995 F.2d 1106 (D.C. Cir. 1993).145 See id. at 1111.

[Vol. 72:893

2004] Nonlegislative Rules

pretive rule. 146 Or, "[i]f a second rule repudiates or is irreconcilable with [aprior legislative rule], the second rule must be an amendment of the first;and, of course, an amendment to a legislative rule must itself be legisla-tive. '' 147 Most judicial inquiry into the status of nominally interpretativerules, however, will instead involve relatively fine-grained judgments aboutwhether the agency has engaged in impermissible policymaking or somethingmore aptly described as interpretation. 148

Perhaps because of the indefinite nature of that distinction, the D.C. Cir-cuit has also taken care to specify certain considerations that will not take adocument out of the interpretative rule category. The court's observationson this score reveal the delicacy of the underlying inquiry. Thus, an agencymay use an interpretative rule to "resolve ... ambiguities in the statute" and,in so doing, may transform "a vague statutory duty or right into a sharplydelineated duty or right.' 49 An interpretative rule need not "only para-phrase statutory or regulatory language"; 150 it may have "the effect of creat-ing new duties."u 51 And an agency directive may be an interpretative ruleeven if it omits to discuss "either the legislative history or the statutory lan-

146 Id. at 1109. As Judge Williams thus explained:The first and clearest case [requiring notice-and-comment rulemaking] is where, inthe absence of a legislative rule by the agency, the legislative basis for agency en-forcement would be inadequate. The example used by the Attorney General'sManual fits exactly-the SEC's proxy authority under § 14 of the Securities Ex-change Act of 1934, 15 U.S.C. § 78n. Section 14(b), for example, forbids certainpersons, "to give, or to refrain from giving a proxy" "in contravention of such rulesand regulations as the Commission may prescribe". 15 U.S.C. § 78n(b). The stat-ute itself forbids nothing except acts or omissions to be spelled out by the Commis-sion in "rules or regulations".

Id.147 Id. (internal quotation marks and citations omitted); see also, e.g., Nat'l Family Planning

& Reprod. Health Ass'n, 979 F.2d at 235 ("[T]he fact that [the agency's] subsequent interpreta-tion runs 180 degrees counter to the plain meaning of the regulation gives us at least some causeto believe that the agency may be seeking to constructively amend the regulation."). Ultimately,Judge Williams distilled four factors to consider in determining whether a putative "interpreta-tive rule" in fact should have been treated as a legislative rule and adopted through notice-and-comment rulemaking. Am. Mining Cong., 995 F.2d at 1112. In particular, he suggested thatcourts ask:

(1) whether in the absence of the rule there would not be an adequate legislativebasis for enforcement action or other agency action to confer benefits or ensure theperformance of duties, (2) whether the agency has published the rule in the Code ofFederal Regulations, (3) whether the agency has explicitly invoked its general legis-lative authority, or (4) whether the rule effectively amends a prior legislative rule.If the answer to any of these questions is affirmative, we have a legislative, not aninterpretive rule.

Id.148 See Am. Postal Workers Union v. U.S. Postal Serv., 707 F.2d 548, 559 (D.C. Cir. 1983)

(noting that what characterizes a legislative rule is the agency's intention "to exercise... dele-gated legislative power").

149 Health Ins. Ass'n of Am. v. Shalala, 23 F.3d 412, 423 (D.C. Cir. 1994). As the courtexplained, such an interpretive rule may validly "change[ ] the legal landscape." Id. "Just as adollar is not exactly the same as a 50-50 chance at two dollars, a precise interpretation is not thesame as a range of possible interpretations." Id. at 423-24.

150 Orengo Caraballo v. Reich, 11 F.3d 186, 195 (D.C. Cir. 1993).151 Fertilizer Inst. v. EPA, 935 F.2d 1303, 1308 (D.C. Cir. 1991).

The George Washington Law Review [Vol. 72:893

guage. '152 An agency interpretation "need not always be correct for its rulesto be considered interpretative," provided that the rule in question does notdramatically depart from the "plain meaning" of the statute or regulation itpurports to interpret.153 Finally, an interpretative rule can properly revisit anagency's earlier interpretation of its organic act, 154 but not of a legislativerule.1 55

Given the level of generality at which the D.C. Circuit articulates suchcriteria, it is difficult, at best, to draw meaningful distinctions between inter-pretive and legislative rules. As a point of contrast, Judge Posner recentlydefined "agency lawmaking," for these purposes, to mean "the making ofreasonable but arbitrary... rules that are consistent with the statute or regu-lation . . . but not derived from it, because they represent an arbitrary choiceamong methods of implementation. '156 Whatever conceptual difficulties thisstandard might ultimately present, 157 it has the virtue of suggesting a moredefinite criterion than any found in the D.C. Circuit's case law. In the D.C.Circuit, even arbitrary bright-line rules of the kind described by Judge Posnermay qualify as interpretative rules. For example, where a legislative regula-tion under the Federal Mine Safety and Health Act required mine operators

152 Id.153 Nat'l Family Planning & Reprod. Health Ass'n v. Sullivan, 979 F.2d 227, 235 (D.C. Cir.

1992); see also, e.g., Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106, 1113(D.C. Cir. 1993) ("An interpretive rule may be sufficiently within the language of a legislativerule to be a genuine interpretation and not an amendment, while at the same time being anincorrect interpretation of the agency's statutory authority."); Fertilizer Inst., 935 F.2d at 1308("Simply because an agency may fail to interpret a statute correctly does not mean that theagency has not in fact interpreted it.").

154 See Am. Postal Workers v. U.S. Postal Serv., 707 F.2d 548, 558-60 (D.C. Cir. 1983), cert.denied, 465 U.S. 1100 (1984) (holding that the Office of Personnel Management's change in themethod of computing civil service annuities qualified as an interpretative rule because both theold and new methods reflected interpretations of the governing statute).

155 See, e.g., Alaska Prof'I Hunters Ass'n, Inc. v. FAA, 177 F.3d 1030, 1034 (D.C. Cir. 1999)("When an agency has given its [legislative] regulation a definitive interpretation, and later sig-nificantly revises that interpretation, the agency has in effect amended its rule, something it maynot accomplish without notice and comment."); Paralyzed Veterans of Am. v. D.C. Arena, 117F.3d 579, 586 (D.C. Cir. 1997) ("Once an agency gives its [legislative] regulation an interpreta-tion, it can only change that interpretation as it would formally modify the regulation itself:through the process of notice and comment rulemaking."). In contrast with the D.C. Circuit,most courts of appeals allow agencies generally to use interpretative rules to alter prior interpre-tative rules. See William R. Andersen, Informal Agency Advice-Graphing the Critical Analysis,54 ADMIN. L. REV. 595, 603 (2002) (discussing the majority position); Pierce, supra note 127, at571-72 & n.161 (collecting decisions holding that an agency can use an interpretative rule toamend a prior interpretative rule).

156 Hoctor v. USDA, 82 F.3d 165, 170 (7th Cir. 1996). Judge Posner added that "[a] rulethat turns on a number is likely to be arbitrary in this -sense." Id. In Hoctor, the court invali-dated an interpretative rule issued by the Agriculture Department to construe a legislative regu-lation requiring certain animal keepers to maintain housing facilities that are "structurallysound" and are maintained to "'protect the animals from injury and to contain the animals."'Id. at 168 (quoting 9 C.F.R. § 3.125(a)). The interpretative rule in question required keepers ofcertain "dangerous animals," including various large cats, within a perimeter fence at least eightfeet high. Id. (internal quotation marks omitted). The Seventh Circuit held that this putativeinterpretative rule, in effect, made a legislative judgment by drawing the bright line that it did.See id. at 170-71.

157 See infra text accompanying note 172.

2004] Nonlegislative Rules

to report certain illnesses within ten days of being "diagnosed," the agencycould rely on an interpretative rule to specify the numerical x-ray rating trig-gering a "diagnosis," the requisite number of certified versus uncertified x-ray readers, and the method of resolving disputes among those readers.158

Similarly, where an environmental statute required certain parties to reportthe "release" of hazardous waste,159 the agency permissibly used an interpre-tative rule to define "release" to mean placing such waste "into any unen-closed containment structure," even if no reportable amount "actually"escaped. 160 If the D.C. Circuit allows agencies to use "interpretative rules" totransform indeterminate statutory or regulatory language into bright-linerules, then the border between interpretation and lawmaking is thinindeed.161

B. Lawmaking Versus Interpretation

As we have thus seen, the law of the D.C. Circuit provides that anagency cannot use "general statements of policy" to articulate binding normsof behavior. 162 So if an agency seeks to specify its regulatory intentions in a

158 Am. Mining Cong., 995 F.2d at 1107-08 (internal quotation marks omitted). The rele-vant diseases are "'[slilicosis, asbestosis, coal worker's pneumoconiosis, and other pneumoconi-oses."' Id. (quoting 30 C.F.R. § 50.20-6(b)(7)(B)) (brackets in original). The court describedthe final interpretative rule as follows:

The final PPL under dispute, PPL No. P92-111-2 (effective August 1, 1992), replacedthe May 1992 PPL and again restated the MSHA's basic view that a chest x-rayrating above 1/0 on the [International Labor Organization] scale constituted a "di-agnosis" of silicosis or some other pneumoconiosis. The August 1992 PPL alsomodified the MSHA's position on additional readings. Specifically, when the firstreader is not a "B" reader (i.e.. one certified by the National Institute of Occupa-tional Safety and Health to perform ILO ratings), and the operator seeks a readingfrom a "B" reader, the MSHA will stay enforcement for failure to report the firstreading. If the "B" reader concurs with the initial determination that the x-rayshould be scored a 1/0 or higher, the mine operator must report the "diagnosis". Ifthe "B" reader scores the x-ray below 1/0, the MSHA will continue to stay enforce-ment if the operator gets a third reading, again from a "B" reader; the MSHA thenwill accept the majority opinion of the three readers.

Id. at 1108.159 Fertilizer Inst. v. EPA, 935 F.2d 1303, 1306 (D.C. Cir. 1991).160 Id. at 1307.161 Other cases in the D.C. Circuit also have permitted agencies to distill quite determinate

interpretative rules from rather indefinite statutory or regulatory words. See, e.g., Air Transp.Ass'n v. FAA, 291 F.3d 49, 52-55 (D.C. Cir. 2002) (approving the use of an interpretative rule toconstrue the term "scheduled flight time" in a legislative regulation to mean "actual expectedflight time and taxi-in time," rather than formally scheduled flight time, for purposes of calculat-ing required rest periods for airline crew members); Orengo Caraballo v. Reich, 11 F.3d 186, 195(D.C. Cir. 1993) (holding that the Department of Labor properly used an interpretative rule toannounce that growers have not "advanced ... directly or indirectly" migrant workers' travelexpenses, within the meaning of a legislative rule, when the growers help arrange third-partytravel loans but bear no risk of loss in the event of default); Am. Postal Workers Union v. U.S.Postal Serv., 707 F.2d 548, 558-60 (D.C. Cir. 1983) (approving the use of an interpretative rule torecalculate "average pay" under the Civil Service Retirement Act and shifting from "hypotheti-cal full-time salary" to "actual salary" as the basis for determining part-time postal workers'annuities (internal quotation marks omitted)).

162 In the D.C. Circuit, quite a range of effects can give a putative policy statement animpermissible "binding" quality:

The George Washington Law Review

legally operative way (without notice-and-comment rulemaking), it must beable to defend the resultant document as an "interpretative rule"-some-thing defensible as an interpretation rather than an exercise of delegated law-making authority. In practice, this framework requires the agency to showthat the document in question merely implements policies already establishedby more formal means in statutes or legislative regulations. An agency can-not rely on (binding) interpretative rules to break new policymaking ground.

Drawing a line between interpretation and policymaking perhaps hadintuitive coherence when the APA was enacted or even when the court ofappeals first embraced that line. In view of the intellectual developmentsassociated with the Supreme Court's decision in Chevron U.S.A., Inc. v. Nat-ural Resources Defense Council, Inc.,163 however, the present framework fordistinguishing interpretative from legislative rules reduces to an unmanage-able question of degree. Chevron established a two-step process for deter-mining the standard of review a reviewing court should apply to agencyinterpretations of statutes. At the first step, the court asks whether the"traditional tools of statutory construction" yield a clear answer to the inter-pretive question.164 If so, that is "the end of the matter; for the court, as wellas the agency, must give effect to the unambiguously expressed intent ofCongress. ' 165 If, however, the reviewing court determines that "Congresshas not directly addressed the precise question at issue"-that is, if the stat-ute is "silent or ambiguous" in relevant respects-then at step two the courtmust accept the agency's "reasonable interpretation," even if the court wouldhave resolved the question differently as a matter of first instance. 166 Thisframework rests squarely on the idea that when an agency interpretation en-tails an exercise of policymaking discretion, it is more consistent with thepremises of our constitutional system for a reviewing court to accept the (rea-sonable) policy determinations of a relatively accountable administrativeagency. 167

If an agency acts as if a document issued at headquarters is controlling in the field,if it treats the document in the same manner as it treats a legislative rule, if it basesenforcement actions on the policies or interpretations formulated in the document,if it leads private parties or State permitting authorities to believe that it will de-clare permits invalid unless they comply with the terms of the document, then theagency's document is for all practical purposes "binding."

Appalachian Power Co. v. EPA, 208 F.3d 1015, 1021 (D.C. Cir. 2000). Thus, an agency cannoteven bind its own discretion by announcing the conditions under which it will forbear fromexercising its prosecutorial discretion to bring enforcement actions against putative violators.See, e.g., Chamber of Commerce v. U.S. Dep't of Labor, 174 F.3d 206, 208 (D.C. Cir. 1999)(holding that the Occupational Safety and Health Administration cannot announce that it willrefrain from inspecting employers who participate in "Cooperative Compliance Program" thatlooks beyond the specific requirements of existing law); Cmty. Nutrition Inst. v. Young, 818 F.2d943, 948 (D.C. Cir. 1987) (holding that a putative policy statement actually constituted an inval-idly adopted legislative rule because the Food and Drug Administration "bound itself' not tobring enforcement actions against food producers whose corn contained less than twenty partsper billion of aflotoxin, a contaminant subject to regulation under the organic act).

163 Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).164 Id. at 843 n.9.165 Id. at 842-43.166 Id. at 843-44.167 As the Court put it:

[Vol. 72:893

2004] Nonlegislative Rules

I discuss below the important respects in which the Court's recent deci-sion in United States v. Mead Corp.168 modified the Chevron framework(among other things, by making it presumptively inapplicable to nonlegisla-tive rules). For present purposes, however, the important point is this: Chev-ron entrenches the crucial insight that when silence or ambiguity leaves andinterpreter with a choice among alternative readings, resolving that indefi-niteness necessarily entails the exercise of policymaking discretion. 69 If thatinsight is correct, then the impulse behind the court's interpretive rule juris-prudence simply no longer works.

Recall the justification for the present interpretive rule framework: TheAPA embraces notice-and-comment procedures as the default position whenagencies wish to use rules to prescribe binding legal policy. So, if an agencywishes to go outside that process to adopt a legally constraining interpreta-tive rule (as opposed to a nonbinding policy statement), it must be able toascribe the policies reflected in the resulting document not to its own discre-tion, but to the commands emanating from one of the approved processes formaking binding law (legislation or notice-and-comment rulemaking). If therule is genuinely interpretative in that sense, it presumably poses no threat tothe prescribed processes because it is merely implementing the outcomes ofone of them. If interpretative rules are to play any meaningful role in admin-istrative practice, Chevron's conceptual insight makes that premise hard toaccept. Only if a statute or legislative regulation were (in relevant respects)

Judges ... are not part of either political branch of the Government. Courtsmust, in some cases, reconcile competing political interests, but not on the basis ofthe judges' personal policy preferences. In contrast, an agency to which Congresshas delegated policy-making responsibilities may, within the limits of that delega-tion, properly rely upon the incumbent administration's views of wise policy to in-form its judgments. While agencies are not directly accountable to the people, theChief Executive is, and it is entirely appropriate for this political branch of theGovernment to make such policy choices-resolving the competing interests whichCongress itself either inadvertently did not resolve, or intentionally left to be re-solved by the agency charged with the administration of the statute in light of eve-ryday realities.

When a challenge to an agency construction of a statutory provision, fairlyconceptualized, really centers on the wisdom of the agency's policy, rather thanwhether it is a reasonable choice within a gap left open by Congress, the challengemust fail. In such a case, federal judges-who have no constituency-have a dutyto respect legitimate policy choices made by those who do.

Chevron, 467 U.S. at 865-66.168 United States v. Mead Corp., 533 U.S. 215 (2001); see also infra Part III.B.169 See, e.g., Lawrence Lessig, Understanding Changed Readings: Fidelity and Theory, 47

STAN. L. REV. 395, 436-37 (1995) (arguing that Chevron rests on the modem assumption thatresolving ambiguity involves interpretive lawmaking rather than law-finding); Laurence H. Sil-berman, Chevron-The Intersection of Law & Policy, 58 GEO. WASH. L. REV. 821, 822 (1990)("Policy... is defined in the dictionary as 'a definite course or method of action selected (as by agovernment, institution, group, or individual) from among alternatives.., to guide and usu[ally]determine present and future decisions."' (footnote omitted)); see also HENRY M. HART, JR. &ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATIONOF LAW 144 (William N. Eskridge, Jr. and Philip N. Frickey eds., 1994) (emphasizing that "discre-tion means the power to choose between two or more courses of action each of which is thoughtof as permissible").

The George Washington Law Review

unambiguous could one plausibly ascribe the embedded policy choice to theantecedent legislative or notice-and-comment process.

Certainly, one could imagine a framework in which reviewing courtsconfined valid interpretive rules to that sort of limited function, summarizingprinciples articulated in a clear statute or legislative rule or perhaps also re-stating agency doctrine developed over time through the more formalprocesses of adjudication. Such a narrow conception of the function of inter-pretive rules, however, would be unprecedented. At the same time, if onedoes accept the deeply embedded premise that interpretive rules can be usedto clarify statutory or regulatory ambiguity, 170 then the D.C. Circuit's analysisof the distinction between legislative and nonlegislative rules necessarilyreduces to one of degree. If filling up the details left blank by a silent orambiguous statute or legislative rule necessarily entails policymaking or in-terstitial lawmaking, then the acceptability of an interpretative rule undercurrent law must, in truth, turn on whether the agency has shifted too large adegree of policymaking from the notice-and-comment process to the less for-mal and often staff-driven process of adopting interpretative rules. 171 If anonlegislative rule involves policymaking writ small, the court calls it "inter-pretation;" if such a rule reflects too much policymaking, the court deems itthe exercise of delegated lawmaking authority.

Much like the judgments of degree that a robust nondelegation ormandatory rulemaking doctrine would necessitate, the resulting inquiry hasan air of arbitrariness to it.172 How can one meaningfully assert that anagency has merely "interpreted" the word "diagnosed" when the "interpreta-tive rule" specifies the requisite numerical rating of an x-ray, the number ofx-ray readers, and the precise method of resolving differences among the

.170 See supra text accompanying notes 149-55, 158-61.-171 Peter Strauss has described the phenomenon in a similar way:

One possible way to imagine publication [nonlegislative] rules ... is as a means forsupplying additional detail unreasonable to expect at the level of the agency head,and in a form sufficiently flexible to permit relatively fast and easy change. If onewere to take this perspective, the publication rule problem would become analo-gous to the delegation problem as it is conventionally expressed: Do (statutes and)legislative rules provide sufficient detail to persuade us that the agency head hasdone as much as it is reasonable to ask it to do, considering competing tasks, availa-ble resources, the public's interest in resolution, and the like?

Strauss, supra note 110, at 1478.172 Such arbitrariness, moreover, is not cured by Judge Posner's attempt to exclude bright-

line rules from the realm of interpretive rules. See Hoctor v. USDA, 82 F.3d 165, 170 (7th Cir.1996); see also supra note 156 and accompanying text. Judge Posner was surely correct to con-clude that a putative interpretative rule specifying a minimum safe height for an animal enclo-sure unmistakably represented a policy determination. See Hoctor, 82 F.3d at 170. AfterChevron, however, that fact cannot distinguish the contents of such a document from countlessother resolutions of statutory or regulatory ambiguity. Unless an interpretative rule undertakesthe relatively trivial task of explaining why an agency regards a given statute or legislative rule asunambiguous, the document's contents will necessarily involve policy judgments. Whether suchan interpretative rule is valid or invalid as such will then turn on whether the agency has usedthat instrument to engage in too much policymaking outside the notice-and-commentframework.

[Vol. 72:893

Nonlegislative Rules

readers? 173 How can one deny the role of policymaking discretion when anagency interprets the "release" of hazardous waste to mean placing it in anopen container, whether or not the waste actually migrates into the environ-ment? 174 And if the foregoing situations qualify as "interpretative rules,"why not also. count as interpretive the FDA's determination that corn is not"poisonous or deleterious" when it contains fewer than twenty parts per bil-lion of aflotoxin? 175 Or why insist upon notice-and-comment rulemakingwhen an agency lays out two risk assessment techniques to determinewhether the handling of toxic material presents an "unreasonable risk of in-jury to health or the environment"?176 Perhaps the latter two examples didinvolve a greater specification of policy detail from a baseline of more open-ended statutory or regulatory terms. But if one accepts Chevron's teaching,the difference is certainly one of degree, for all such examples necessitatedthe exercise of some policymaking discretion. Ultimately, the D.C. Circuit'smethod of identifying procedurally invalid nonlegislative rules may necessi-tate reliance on little more than an I-know-it-when-I-see-it test.177

III. Nonlegislative Rules and Review on the Merits

At least in part because of the lack of judicially manageable standards,the Supreme Court has virtually abandoned direct Marbury-style review ofthe sufficiency of statutory precision in nondelegation cases. 178 Similarly, al-though the judicial manageability concerns have been less explicit, the Courthas also rejected any effort to hold that some policy pronouncements involvesuch broad generalizations-seem so rule-like in the conventional sense-that agencies must use rulemaking rather than adjudication to announcethem.179 In each context, the Court has spared itself the difficult, if not im-possible, task of deciding whether a legal text is sufficiently precise to satisfysome putative obligation to make policy through a particular process-be itbicameralism and presentment or notice-and-comment rulemaking. Instead,the Court has sought to reinforce the relevant lawmaking processes indi-rectly, through other forms of judicial review. In the nondelegation context,

173 See Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106, 1107-08 (D.C.Cir. 1993).

174 Fertilizer Inst. v. EPA, 935 F.2d 1303, 1306-07 (D.C. Cir. 1991).175 See Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 945-49 (D.C. Cir. 1987) (internal quo-

tation marks omitted).176 See Gen. Elec. Co. v. EPA, 290 F.3d 377, 382-85 (D.C. Cir. 2002).177 My colleague Peter Strauss has aptly framed the question as follows:

The courts have confessed their inability to generate an administrable standard todistinguish, in general, proper from excessive delegations. Could they any betterdefine a test for what degree of legislative rulemaking by the agency head is suffi-cient then to permit their staffs to "fill in the details", by publication rulemaking,subject only to such corrections as may come retrospectively through petitions forrulemaking, consideration of such issues as may eventually arise in adjudications,or the like?

Strauss, supra note 110, at 1479.178 See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 474-75 (2001) (explaining the

Court's institutional reluctance to enforce the nondelegation doctrine directly through constitu-tional invalidation of excessive delegations).

179 See NLRB v. Bell Aerospace Co., 416 U.S. 267, 291-94 (1974).

20041