AGENCY GUIDANCE THROUGH INTERPRETIVE RULES:
RESEARCH AND ANALYSIS
Blake Emerson* and Ronald M. Levin†
EXECUTIVE SUMMARY
Recommendation 2017-5 urges agencies to consider inviting public input before or after
they issue policy statements, and also to take steps to ameliorate tendencies for policy statements
to become coercive or “binding as a practical matter.” This report explores the extent to which
these recommendations should also apply to interpretive rules.
Part I explains the origins of Recommendation 2017-5, what it provides, and how
deliberations on that recommendation gave rise to the present project.
Part II reports on the consultants’ interviews with agency officials. These officials
expressed a variety of opinions regarding what kinds of documents they consider “interpretive”;
whether and how they differentiate between interpretive rules and policy statements; how
interpretive rules are drafted, including any opportunities for public comment; and whether these
officials thought that interpretive rules could in any sense be binding.
Part III analyzes case law on the Administrative Procedure Act rulemaking exemption for
interpretive rules, as well as cases on judicial review. After critically examining assertions or
intimations in these cases that interpretive rules may be binding, this part concludes that these
authorities do not militate against a best-practices recommendation that would treat such rules as
non-binding.
Part IV suggests that a Conference recommendation on extending the principles of
Recommendation 2017-5 to interpretive rules might rest on the following premises: (1) Agencies
should encourage public input on interpretive rules, both prior and subsequent to their
promulgation, on terms similar to those for policy statements. (2) While agencies should not treat
interpretive rules as binding, their decisions about what constitutes a fair opportunity to contest
such rules may legitimately take account of considerations such as the agency’s need for
practicability, centralized control over staff, and protection of stability and reliance interests. (3)
The expectation in Recommendation 2017-5 that a policy statement “should prominently state that
it is not binding on members of the public” may be inapt as applied to some interpretive rules. (4)
The provisions of Recommendation 2017-5 that encourage agencies to allow or invite members of
the public to “argue for lawful approaches other than those put forward by a policy statement”
would be an imperfect fit as applied to some interpretive rules but should be useful as applied to
other ones.

*
†

Assistant Professor of Law, UCLA School of Law.

William R. Orthwein Distinguished Professor of Law, Washington University in St. Louis. We thank Reeve Bull,
Lee Liberman Otis, and Nicholas Parrrillo for helpful comments on earlier drafts of this report.

Table of Contents
I. BACKGROUND ..................................................................................................................................... 2
A. Genesis of this Project ....................................................................................................................... 2
B. Recommendation 2017-5 ................................................................................................................... 2
C. Adoption of the Recommendation and Subsequent Events .......................................................... 5
D. Interview and Research Process ...................................................................................................... 6
II. AGENCIES’ INTERPRETIVE RULES PRACTICE........................................................................ 7
A. The Uses of Interpretive Rules .......................................................................................................... 7
B. The Meaning of Interpretive Rules................................................................................................... 9
C. The Drafting of Interpretive Rules ................................................................................................. 12
D. Binding Aspects of Interpretive Rules............................................................................................ 15
III. THE LEGAL BACKDROP............................................................................................................... 18
A. Rulemaking Exemption .................................................................................................................. 20
B. Judicial Deference ........................................................................................................................... 23
C. Access to Judicial Review ............................................................................................................... 25
IV. INTERPRETIVE RULES AND THE PRINCIPLES OF RECOMMENDATION 2017-5......... 28
A. Public Participation in the Drafting or Reconsideration of Interpretive Rules ......................... 28
1. Pre-adoption public participation ............................................................................................... 28
2. Post-adoption public participation ............................................................................................. 30
B. Binding Effect ................................................................................................................................... 33
1. The question of intrinsically binding effect ............................................................................... 33
2. Practical binding effects .............................................................................................................. 34
3. Disclaimers and other ameliorative measures ........................................................................... 36
4. Limiting factors ............................................................................................................................. 38
C. Invited Flexibility ............................................................................................................................. 42
APPENDIX ................................................................................................................................................ 45

AGENCY GUIDANCE THROUGH INTERPRETIVE RULES:
RESEARCH AND ANALYSIS
Blake Emerson and Ronald M. Levin
The purpose of this report is to explore the extent to which the best practices outlined in
ACUS Recommendation 2017-5 should apply to interpretive rules. Recommendation 2017-5
covered “only policy statements, not interpretive rules.”1 However, the recommendation
acknowledged that at least some of its recommendations “may also be helpful” with regard to
interpretive rules.2 Similarly, the underlying report by Nicholas Parrillo, which was couched as a
study of agency “statements that are supposed to be nonbinding,” focused on policy statements
and left open the question of whether this “nonbinding” category might include interpretive rules.3
The recommendation and report therefore raised a number of questions about agency use of
interpretive rules, including whether the Conference should apply Recommendations 2017-5 in its
entirety to interpretive rules, or, perhaps, recommend different or modified practices with regard
to such rules. This report seeks to clarify some of those questions.
Policy statements and interpretive rules are collectively known as “guidance,” and
administrative lawyers often speak of them as a single category. During the past twenty-five years,
other governmental and bar groups have issued pronouncements on the same general subject as
Recommendation 2017-5, each using a single framework to apply to both policy guidance and
interpretive guidance. These pronouncements have included a resolution by the American Bar
Association;4 the Food and Drug Administration’s (FDA) good guidance practices policy;5 the
Final Bulletin on Good Guidance Practices issued by the Office of Management and Budget
(OMB);6 and a 2017 memorandum issued by the Department of Justice.7 The FDA policy was
actually ratified in relevant part by Congress.8 The Administrative Conference does not
necessarily have to reach conclusions that match those of the groups just mentioned, but these
1
ACUS Recommendation 2017-5, Agency Guidance Through Policy Statements, 82 Fed. Reg. 61,734, 61,734 (Dec.
29, 2017) [cited herein simply as “Recommendation 2017-5”].
2

Id.

3

Nicholas R. Parrillo, Federal Agency Guidance: An Institutional Perspective, Final Report to the Administrative
Conference of the United States (Dec. 1, 1017), https://www.acus.gov/sites/default/files/documents/parrillo-agencyguidance-final-report.pdf, 25. The report has subsequently been published in revised form in separate segments as (1)
Nicholas R. Parrillo, Federal Agency Guidance and the Power to Bind: An Empirical Study of Agencies and Industries,
36 YALE J. ON REG. 165 (2019), and (2) Nicholas R. Parrillo, Should the Public Get to Participate Before Federal
Agencies Issue Guidance? An Empirical Study, 71 ADMIN. L. REV. 57 (2019). Citations in this report are to the ACUS
version.
4

ABA Recommendation 120C, 118-2 ANN. REP. A.B.A. 57 (Aug. 1993).

5

21 C.F.R. § 10.115 (2017) (FDA, Sept. 19, 2000).

6

Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 3432 (OMB, Jan. 25, 2007) [hereinafter OMB
Bulletin]
7

Prohibition on Improper Guidance Documents, (DOJ, Nov. 16, 2017), https://www.justice.gov/opa/pressrelease/file/1012271/download.
8

See 21 U.S.C. § 371(h)(1)(B) (2012) (“guidance documents shall not be binding on the Secretary”).

1

pronouncements do give impetus to the suggestion that the Conference should devote further study
to this area in light of this developing body of professional opinion.9
I. BACKGROUND
A. Genesis of this Project
The roots of this project can be traced back to ACUS Recommendation 92-2, called
“Agency Policy Statements.”10 In that recommendation the Conference expressed its concern
about “situations where agencies issue policy statements which they treat or which are reasonably
regarded by the public as binding and dispositive of the issues they address.” Thus, in order “to
prevent policy statements from being treated as binding as a practical matter,” the Conference
recommended that agencies should maintain “procedures [by which] affected persons [are]
afforded a fair opportunity to challenge the legality or wisdom of [a policy statement] and to
suggest alternative choices in an agency forum that assures adequate consideration by responsible
agency officials.” This recommendation was based on an extensive consultant’s report by
Professor Robert Anthony.11 Interpretive rules were expressly excluded from the scope of the
recommendation: the document defined policy statements to include “all substantive
nonlegislative rules to the extent that they are not limited to interpreting existing law.”12
Twenty-five years later, the Conference engaged Professor Nicholas Parrillo to revisit the
same terrain and “update[]” Recommendation 92-2. He conducted very extensive interviewing
and analysis and submitted a thorough research report. Taking the earlier recommendation as the
basis for the scope of his research, Parrillo directed his questions to interviewees regarding policy
statements; his interviews sometimes touched incidentally on interpretive rules, but he did not
undertake to analyze them in depth. This research formed the foundation for the Assembly’s
adoption of Recommendation 2017-5 on December 14, 2107.

B. Recommendation 2017-5
The following is intended as a concise summary of Recommendation 2017-5, for the
reader’s convenience. (The appendix to this report contains the full text of the numbered
recommendations in the 2017 document, “annotated” to reflect our suggestions as to whether and
how each paragraph might be adapted to apply to interpretive rules.)
Recommendation 2017-5 began by explaining some of the ways in which policy statements
“are of great value to agencies and the public alike.” For example, “[c]ompared with adjudication
9

For details on the pronouncements cited in this paragraph, see Ronald M. Levin, Rulemaking and the Guidance
Exemption, 70 ADMIN. L. REV. 263, 278-87 (2018) [hereinafter Levin, Guidance Exemption].
10

ACUS Recommendation 92-2, Agency Policy Statements, 57 Fed. Reg. 30,101 (July 8, 1992).

11

Robert A. Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals, and the Like—Should Federal
Agencies Use Them to Bind the Public?, 41 DUKE L.J. 1311 (1992).
12

ACUS Recommendation 92-2, supra note 10, at 30,104 (emphasis added).

2

or enforcement, policy statements can make agency decisionmaking faster and less costly, saving
time and resources for the agency and the regulated public.” They also “make agency
decisionmaking more predictable and uniform and shield regulated parties from unequal treatment,
unnecessary costs, and unnecessary risk, while promoting compliance with the law.”
The recommendation then harked back to the main theme of Recommendation 92-2,
recognizing that “policy statements are sometimes criticized for coercing members of the public
as if they were legislative rules, notwithstanding their legally nonbinding status.” However, it
continued, the earlier document had defined the problem in terms of an agency’s intent to use
policy statements to bind the public.” The 2017 document sought to “supplement[]” the earlier
one by identifying “other reasons why members of the public may feel bound by what they
perceive as coercive guidance,” including factors “that are not of the making of an agency or its
officials.” For example:
This is often the case if statutes or regulations (a) require a regulated party to obtain prior
approval from an agency to obtain essential permissions or benefits; (b) subject a regulated
party to repeated agency evaluation under a legal regime with which perfect compliance is
practically unachievable, incentivizing the party to cultivate a reputation with the agency
as a good-faith actor by following even non-binding guidance; or (c) subject the regulated
party to the possibility of enforcement proceedings that entail prohibitively high costs
regardless of outcome, or can lead to sanctions so severe that the party will not risk forcing
an adjudication of the accusation.
The recommendation also mentioned another kind of situation in which a non-regulated
party might feel practically bound by a policy statement. For example “the policy statement
promises to treat regulated parties less stringently than the statute or legislative rule requires,
effectively freeing those parties to shift their behavior in a direction that harms beneficiaries.” In
this case, regardless of its legal effect, the policy statement may de facto deprive some
beneficiaries of the statute or legislative rule of its benefits, thereby in a sense “coercing” them.
Likewise, the recommendation continued, a policy statement may encourage regulated parties to
take steps not required by the statute or legislative rule that impose costs on members of the public,
thereby effectively “coercing” those members of the public to bear those costs.
Finally, the recommendation said, agencies sometimes have legitimate reasons for
displaying a lack of flexibility even in the context of a legally non-binding policy statement. “For
example, if one regulated firm argues for a different approach from that in a policy statement and
the agency approves, this may prompt other firms to criticize the agency for not keeping a level
playing field among competitors[and] may open the agency to accusations of favoritism.”
Having acknowledged that pressures such as the foregoing “tend to give at least some
policy statements a quasi-binding character in fact regardless of their legal status,” the
recommendation turned to constructive suggestions—“important steps that agency officials can
take to mitigate these legislative-rule-like effects of policy statements.” We will briefly summarize
them.

3

The first two numbered paragraphs in the Recommendation essentially reaffirmed the
principal message of Recommendation 92-2: “An agency should not use a policy statement to
create a standard binding on the public” (¶ 1), and it should “afford members of the public a fair
opportunity to argue for lawful approaches other than those put forward by a policy statement or
for modification or rescission of the policy statement” (¶ 2).
Next, the recommendation provided in ¶ 3 that these admonitions did not mean that the
prescribed “fair opportunity” would necessarily have to be available at every level of the agency
decisionmaking structure:
Although a policy statement should not bind an agency as a whole, it is sometimes
appropriate for an agency, as an internal agency management matter, and particularly when
guidance is used in connection with regulatory enforcement, to direct some of its
employees to act in conformity with a policy statement. But the agency should ensure that
this does not interfere with the fair opportunity called for in Recommendation 2. For
example, a policy statement could bind officials at one level of the agency hierarchy, with
the caveat that officials at a higher level can authorize action that varies from the policy
statement.
In ¶ 4, the recommendation stated that “[a] policy statement should prominently state that it is not
binding on members of the public” and explain how a member of the public can resort to the “fair
opportunity” envisioned in ¶ 2. The basic ideas in these paragraphs had also appeared in
Recommendation 92-2, although phrased somewhat differently.13
In ¶ 5, the recommendation provided in part: “A policy statement should not include
mandatory language unless the agency is using that language to describe an existing statutory or
regulatory requirement, or the language is addressed to agency employees and will not interfere
with the fair opportunity called for in Recommendation 2.” This sentence came almost verbatim
from the OMB Good Guidance Practices Bulletin (except that the Bulletin applied it to all
“significant guidance documents,” not just policy statements).14 In ¶ 6, the recommendation urged
that employees of the agency should be trained not to characterize policy statements as binding on
the public.
In ¶ 7 the recommendation set forth additional measures that agencies might take to
promote flexibility, “subject to considerations of practicability and resource limitations.” Among
them was a suggestion that when an agency authorizes one entity to follow an approach other than
the one spelled out in a policy statement, it should also make that option known to similarly situated
entities. Another suggestion was that responsibility for responding to proposals for departures
from policy statements should be assigned to officials whom the agency believes are likely to
respond to them constructively. In addition, the paragraph suggested additional training of
employees in the interest of augmenting agency flexibility, as well as obtaining feedback from
13

Recommendation 92-2, ¶¶ II.A., III, supra note 10, at 30,104.

14

See OMB Bulletin, supra note 6, at 3,440.

4

outside entities as to how well the agency is achieving flexibility. In ¶ 8, the recommendation
offered additional prudential factors for agencies to consider in choosing whether to pursue the
measures described in ¶ 7.
In ¶ 9 the recommendation proposed means by which agencies might solicit public
participation from the public, “with or without a response,” during the formulation of policy
statements. It discussed factors that bear on whether to invite such participation, as well as
methods the agency might use. In ¶ 10 the recommendation proposed similar factors to consider
in regard to soliciting post-promulgation input. In ¶ 11 the recommendation suggested that
agencies might decide whether to solicit public input on policy statements on a document-bydocument basis. It cautioned that an overly categorical approach might give rise to an unfortunate
situation in which policy statements that were subject to pre-adoption procedures for public
participation might remain in draft for substantial periods of time.
Finally, ¶ 12 recommended that written policy statements that affect persons outside the
agency should be promptly made available electronically, along with explanations about what
reliance may be placed on them and how one may seek reconsideration or modification of them or
propose alternatives to them.

C. Adoption of the Recommendation and Subsequent Events
As proposed to the Assembly by the Committee on Judicial Review and the Council, the
draft document that would become Recommendation 2017-5 stated that “[t]his recommendation .
. . covers only policy statements, not interpretive rules; nevertheless, many of the recommendations
herein regarding flexible use of policy statements may also be helpful with respect to agencies’
use of interpretive rules.”
During deliberations by the Assembly on the draft recommendation, Senior Fellow Ronald
Levin (one of the authors of this report) proposed amendments that would have the effect of
expanding the scope of the recommendation to encompass interpretive rules also. He emphasized
that other governmental bodies had adopted procedures or guidelines regarding the same general
subject, each using only one framework to address all guidance – that is, both policy statements
and interpretive rules.15 He based his arguments on research that he had conducted for a thenpending (since published) article on the exemptions for interpretive rules and policy statements in
the rulemaking section of the APA.16
A prominent concern expressed during the ensuing debate was that the proposed action
would be premature because Parrillo’s research had not been directed toward interpretive rules.
The upshot was that, although the Assembly declined to adopt the amendments, it also adopted by
consensus a “sense of the Conference” resolution to the effect that the Conference should
15

See supra notes 4-8 and accompanying text.

16

Levin, Guidance Exemption, supra note 9.

5

undertake a study of interpretive rules. In this light, and after making unrelated amendments, the
Assembly adopted the draft resolution, which became Recommendation 2017-5.17 Subsequently,
Levin submitted a separate statement to accompany the recommendation, expressing the hope that
the study contemplated by the Assembly’s hortatory resolution would be pursued.18
These discussions led directly to the initiation of the present study. The Conference staff
enlisted Levin and Professor Blake Emerson to serve as co-consultants for the study. Emerson has
also conducted research on guidance.19

D. Interview and Research Process
To inform our conclusions about agency best practices on interpretive rules, we
interviewed officials from eleven federal agencies. ACUS staff initially sent requests for
interviews to officials at twenty-two agencies. The agencies contacted were chosen based on our
sense of their prominence in the federal regulatory space and the interpretive rules case law, as
well as on input from ACUS staff. The agencies ultimately interviewed were structurally and
substantively diverse. Some were executive branch agencies; some were components of
departments; others were independent. Their subject-matter jurisdiction covered a wide range of
the administrative responsibilities of the federal government, including economic and social
regulation as well as benefit provision. Most of the officials interviewed were attorneys serving in
their agencies’ office of general counsel, though some worked in adjudication or in program
offices.
The interviews were semi-structured, probing agencies’ procedures and practices regarding
interpretive rules and other public-facing documents that do not go through the notice-andcomment rulemaking process. The conversations were not narrowly focused around those
documents labeled as “interpretive rules.” Rather, the interviewer first sought to get a broader
picture of agencies’ guidance practices. The goal was to learn what sorts of distinctions, if any,
officials drew between documents they thought of as “interpretive” and other forms of guidance.
Conversations covered a wide range of topics related to: the various categories of guidance
documents the agencies use; the processes the agencies went through to draft interpretive rules and
related documents; the role interpretive rules played in the agencies’ rulemaking, adjudicatory, and
enforcement activities; the functional importance of the distinction between “law” and “policy” at
the level of guidance; and whether interpretive rules might use mandatory terms or have any
binding effects.
In order to promote candor, the interviewer asked interviewees whether they were
comfortable having their employing agency identified in the report. Though some officials agreed
to such attributions, others preferred to remain anonymous. For the sake of consistency and to
17

Minutes, 68th Plenary Sess. of the Admin. Conf. of the U.S., Dec. 14-15, 2017, at 3.

18

Recommendation 2017-5, 82 Fed. Reg. at 61,737-38 (separate statement of Senior Fellow Ronald M. Levin).

19

Blake Emerson, The Claims of Official Reason: Administrative Guidance on Social Inclusion, 128 YALE L.J. 2122
(forthcoming 2019).

6

preserve requested anonymity, this report does not provide the name of the interviewees or the
interviewees’ employing agencies. Instead, each agency interviewed has been assigned a number,
and any comments from agency officials during these interviews are cited as “Agency [number].”
This report uses quotation marks to signify comments from agency personnel as reported
in contemporaneous notes taken during each interview. Thus, such comments reflect our best
effort to transcribe comments in the course of the interviews. We have used the quotation marks
because we believe it is helpful to distinguish such close approximations of the interviewees’
words from more general characterizations of the thrust of their remarks. Nevertheless, the reader
should understand that some quotations may not be verbatim.

II. AGENCIES’ INTERPRETIVE RULES PRACTICE
This part describes major themes and insights from the eleven agency interviews. It reports
on the perceptions of our interviewees as they themselves expressed them. We regard these
interviews as supplementing, not superseding, the extensive research that Professor Parrillo
conducted in the preceding project. His work encompassed perspectives that ours did not—
notably, industry and NGO views. We have drawn critically from both of these sources in
developing our evaluative conclusions in Part IV.
Anonymous attribution prevents any detailed assessment of any particular agency’s
interpretive rules practice. Instead, this part begins with an overview of the diverse ways in which
documents that agency officials described as “interpretive” are used in agency proceedings. It then
surveys whether and how officials thought the distinction between “interpretive” documents and
other forms of guidance mattered in practice. Next it considers how interpretive rules are drafted,
including the role of various offices within the agency and any opportunities for public comment.
Finally, this part reports on whether agency officials thought that interpretive rules could in any
sense be binding.
Throughout, officials’ views on interpretive rules are often presented in comparison to their
understanding of guidance, in general, and policy statements, in particular. The term “interpretive
rule” is used to describe both guidance documents that the agency explicitly labels as “interpretive
rules” as well as guidance documents (or parts of guidance documents) that agency officials
described as “interpretive” in nature during interviews. Some interviewees also used the term
“guidance” in referring to their procedural rules, and we report that usage as well, although such
rules do not always fit our own definition of guidance (i.e., some procedural rules are legislative
rules).

A. The Uses of Interpretive Rules
Interpretive rules and other documents that officials describe as “interpretive” serve a wide
variety of functions at different agencies. Several agencies use interpretive rules to address certain
“narrow,” “discrete,” or “specific” legal issues concerning the meaning of a statute or rule the
7

agency administers.20 Interviewees universally understood that interpretive rules could not create
substantive legal rights and duties or amend legislative rules. Because of this categorical difference
between rules that were “substantive” and those that were not, some officials did not make a sharp
distinction between interpretive rules and internal procedural rules.21 On their understanding,
interpretive rules might be used to describe how internal administrative proceedings and decisionmaking would work. Nonetheless officials from several other agencies noted that interpretive rules
could sometimes address issues with significant policy implications.22
Most agencies interviewed use interpretive rules in adjudication and enforcement
processes.23 Several agencies use interpretive rules to instruct adjudicatory officials about how the
agency understands the legal requirements the adjudicators are to apply.24 Other agencies use
interpretive rules to guide officials’ enforcement of statutory and regulatory requirements.25
Interpretive rules might also be directed towards members of the public, providing clarity or
announcing a change in the agency’s position concerning the meaning of regulatory or statutory
terms.26 Interpretive documents in the enforcement context could also be used to establish “safe
harbors” against enforcement.27 At one agency, interpretive rules provide applicants with ways to
comply with licensing requirements.28
Interpretive rules related to legislative rules in several different ways. One official
distinguished interpretive rules from legislative rules on the grounds that an interpretive rule would
not include any new regulatory text to be included in the Code of Federal Regulations, since it
would not change any existing “determinative” requirements.29 Some agencies would couple
documents styled “interpretive rules” with legislative rules.30 One agency attached interpretive
rules as appendixes to legislative rules so that they “stay[] with” the regulation and attain greater
“permanence” than other forms of guidance would.31 Another agency similarly required that an
interpretive rule “travel with” the underlying regulation.”32 At a third, “rulemakings combine rules
that are legislative and those that are interpretive.”33 Interpretive rules sometimes served as a
stepping stone or short-term placeholder for rulemaking. In cases where members of the public
20

Agency 1; Agency 2; Agency 7; Agency 8; Agency 11.

21

Agency 9; Agency 11.

22

Agency 2; Agency 5; Agency 8.

23

Agency 1; Agency 2; Agency 3; Agency 5; Agency 6; Agency 7; Agency 8; Agency 9; Agency 10; Agency 11.

24

Agency 1; Agency 2; Agency 3; Agency 4; Agency 5; Agency 8; Agency 9.

25

Agency 1; Agency 3; Agency 8;

26

Agency 1; Agency 2; Agency 4; Agency 6; Agency 7; Agency 8; Agency 9; Agency 11;.

27

Agency 10.

28

Agency 4.

29

Agency 8.

30

Agency 1; Agency 4; Agency 10.

31

Agency 1.

32

Agency 4.

33

Agency 10.

8

urgently requested clarification on a matter and there was insufficient time to issue a legislative
rule, an interpretive rule might be put out in the interim.34 Several agency officials observed that
one of the advantages of interpretive rules, like policy statements, was that they could be issued
more quickly and with less formal process that legislative rules.35 This permitted regulatory
flexibility and quick responses to urgent questions. Interpretive rules could also be used to “start a
conversation” with the courts and legislators about the substance of the law, providing suggestions
for how the laws could be constructed or amended in the future.36

B. The Meaning of Interpretive Rules
Agency officials held different views about whether “interpretive rules” were meaningfully
distinct from “general statements of policy” or other forms of guidance. Officials from several
agencies reported that interpretive rules have relatively higher stature than other forms of guidance
documents, either in terms of their authority for agency personnel or the specificity of their terms.37
This conception of interpretive rules appeared unrelated to the regulatory powers at the agency’s
disposal. For one agency, interpretive rules sit at the apex of their hierarchy of internal law, serving
a role that is fundamentally distinct form other forms of guidance.38 At this agency interpretive
rules could set “mandates” for agency personnel or determine aspects of the agency’s adjudicatory
procedure, whereas policy statements and other forms of guidance provided more detailed,
subsidiary information on the terms of the interpretive rule.39 Another agency with adjudicatory
and rulemaking powers treats interpretive “rulings” as the most important category of guidance
document.40 At this agency, operational manuals and other policy statements were categorically
less authoritative than these interpretive rules in shaping officials’ conduct.41 By contrast, officials
at another agency with varying powers across subject matters did not view interpretive rules and
policy statements as categorically distinct.42 Instead, these officials viewed the distinction between
the two as “more a function of timing and history.”43 As the judicial case law on guidance has

34

Agency 5; Agency 11. We note parenthetically that, abstractly speaking, an option for agencies in this situation
may be to issue an interim rule. See generally ACUS Recommendation 95-4, Procedures for Noncontroversial and
Expedited Rulemaking, 60 Fed. Reg. 43,110 (Aug. 18, 1995). However, the cited comments in the interviews
concerned situations in which that possible option was not pursued.
35

Agency 3; Agency 5; Agency 8.

36

Agency 1.

37

Agency 1; Agency 4; Agency 5.

38

Agency 9

39

Agency 9.

40

Agency 5.

41

Agency 5.

42

Agency 1.

43

Agency 1.

9

evolved, the perceived benefits of issuing a document that is labeled “interpretive” would increase
or diminish, and agencies would often respond to these incentives.44
Officials expressed a wide variety of views on the distinction between “law” and “policy,”
which usually but not always tracked whether they differentiated interpretive rules from policy
statements. Some officials did not draw a bright line between interpretive rules and policy
statements in part because they did not believe that the distinction between “law” and “policy” was
meaningful at the level of guidance.45 But one official did not believe that questions of law and
policy could be separated even though interpretive rules played a categorically more authoritative
role in his agency’s hierarchy of internal law than policy statements.46 This official observed that
all guidance documents generally consist of some “policy determination . . . [B]ut all there is for
us effectively is to interpret what we are given as law from the people who make the law. . . . I
can’t think of an instance where there’s a policy issue that isn’t a matter of interpretation, or the
converse.”47
Officials from a majority of agencies interviewed thought questions of law and policy were
meaningfully different.48 But how officials understood the difference between the two varies. One
agency that drew hierarchical distinctions between interpretive rules and other guidance treated
“questions of law” as concerning more serious value choices.49 A “question of policy,” on the other
hand, was an “operational” or clerical matter, such as how to fill out forms or interact with the
agency.50 Another agency official treated a question of policy as one that involved “agency
priorities” and “efficiency,” addressing “confusion in the field,” or causing “impact to the public”
or that provided “ways to comply with a legal standard.”51 Questions of law, on the other hand,
were solely concerned with the proper construction of a statute or regulation.52 An official at a
different agency similarly thought that interpretive rules address the question, “what is the
strongest meaning of the statute?”53 Policy statements, on the other hand, made “more of a process
determination,” in which “we recommend you do something in a particular way.”54 An official at
another agency likewise thought there was a clear difference between “what a statute means,”
which was interpretation, and “how we’re going to implement it,”55 which was policy. These
policy questions would tend to involve more technical issues about the feasibility of compliance
44

Agency 1; Agency 8; Agency 10.

45

Agency 1; Agency 10.

46

Agency 9.

47

Agency 9.

48

Agency 2; Agency 3; Agency 5; Agency 7; Agency 8; Agency 11.

49

Agency 5.

50

Agency 5.

51

Agency 3.

52

Agency 3.

53

Agency 11.

54

Agency 11.

55

Agency 2.

10

alternatives.56 Another official understood interpretive rules to set more “specific rules,” whereas
policy statements provide more general information about good practices at the “1000 foot level”
or “10,000 foot level.”57
Officials from several agencies recognized that questions of law and questions of policy
were distinct, but nonetheless thought they overlapped significantly at the level of guidance.58
Officials from two agencies noted that law and policy were often “intertwined” in guidance
documents.59 Officials from two other agencies conceptualized the relationship between law and
policy in terms of two possibilities.60 First, there are cases in which officials at the agency conclude
that a provision of the statute or regulation has one clear meaning based on standard techniques of
legal interpretation, such as analysis of text, structure, and legislative history. This would be a pure
question of law that agency officials would classify as interpretive. In that case, the interpretive
rule merely “crystallize[s]” the statute or regulation.61 Second, there are cases where officials
conclude, based on these same sources, that the statute or regulation could equally well mean two
or more things. In that case, the interpretation of the statute or regulation would raise matters of
policy as well as issues of legal interpretation. The agency might then weigh any number of
practical considerations in determining which interpretation to endorse in guidance, and would
likely benefit from public input on the topic.62 One of the two officials who conceptualized the
relationship between law and policy this way used the Chevron framework to explain the
difference: some matters dealt with in an interpretive rule are purely legal, because the meaning
statute of regulation or regulation is clear; others involve both interpretation and policy, because
the statute or regulation is ambiguous.63 At several agencies, the same document might include
both interpretive elements, in which the meanings of particular statutory or regulatory terms were
delineated, and policy elements, which would set out methods of enforcement for agency personnel
or methods of compliance for regulated parties.64
Several interviewees distinguished interpretive rules and policy statements by whether they
were action-oriented or not. Whereas an interpretive rule would say what the agency takes a law
or regulation to mean or require, a policy statement would instruct an official or private person
about what they should do.65 According to one official “interpretive documents are how we lay
out our view of the law or regulation we administer,” whereas policy documents “have this
additional layer of saying, this is how our enforcement discretion will be deployed. Policy
56

Agency 2.

57

Agency 4.

58

Agency 7; Agency 8; Agency 9; Agency 10.

59

Agency 3; Agency 11.

60

Agency 7; Agency 8.

61

Agency 8.

62

Agency 7.

63

Agency 8.

64

Agency 3; Agency 7; Agency 8.

65

Agency 2; Agency 6.

11

documents say we’re exercising our enforcement discretion in a way because of our views.”66 An
official from another agency similarly observed that “[i]nterpretive rules may be more suited to
discrete legal issue. [A] general statement[] of policy is where you stake out a broad policy and
then you carry through the legal ramifications . . . from that policy position.”67

C. The Drafting of Interpretive Rules
There was significant variation in the internal procedures by which interpretive rules were
drafted, corresponding to the diverse structures, sizes, and responsibilities of the agencies
interviewed. As the preceding discussion indicates, not all agencies sharply distinguished between
interpretive rules and policy statements in all cases; one and the same document might contain
both interpretations and exercises of enforcement discretion.68 For such agencies, the drafting of
interpretive rules was not meaningfully different from the drafting of policy statements, and
general guidance practices would apply to both. Other agencies, however, distinguished
interpretive rules from policy statements, using the former either to address discrete legal issues
or to set relatively authoritative rules within the agency’s hierarchy of internal law.69 It is
impossible to generalize about how these differences in the use and meaning of interpretive rules
impacted the way in which agencies drafted them. But this section lays out some of the prominent
procedural features of the drafting of interpretive rules, some of which differ from the methods by
which policy statements are drafted.
At some agencies, any guidance that set out a new legal interpretation or policy generally
had to be approved by the office of the agency’s appointed head(s).70 Other guidance documents
that merely explained an existing policy or interpretation—such as FAQs or operational manuals—
could be formulated and issued without the involvement of political leadership.71 At others,
however, interpretive rules did not always require involvement or sign off from the agency’s
head(s).72 One agency’s internal procedures required that interpretive rules be issued with the
approval of the agency head or her designee in the event the rule was a “significant guidance
document” under the Office of Management and Budget’s (OMB) terminology.73 The issuing
office, in consultation with the agency’s office of legal counsel, would determine whether the
document should be classified as “significant.”74 By contrast, officials from another agency
reported that they would not classify a guidance document as “significant” unless OMB classified
66

Agency 6.

67

Agency 1.

68

Agency 1; Agency 3; Agency 4; Agency 8.

69

Agency 1; Agency 2; Agency 4; Agency 5; Agency 7; Agency 8; Agency 9; Agency 11.

70

Agency 1; Agency 5; Agency 9.

71

Agency 1 Agency 5; Agency 9.

72

Agency 4; Agency 6; Agency 7; Agency 10; Agency 11.

73

Agency 7.

74

Agency 7.

12

it as such.75 OMB would either learn about a guidance document through informal channels and
review it to determine if it was “significant,” or officials in the agency’s Office of General Counsel
(OGC) would send guidance documents that might qualify as “significant” to OMB for review.
Agencies’ offices of general counsel, or their organizational equivalent, usually played a
central role in drafting interpretive rules.76 In administrative parlance, the legal staff would “hold”
or “take the pen” if the guidance raised issues of legal interpretation.77 OGC review of interpretive
issues in guidance documents served a rule of law function within some agencies. For example,
one official said that “[i]nternally within our legal office, we’ll discover that our practice
contradicts statute or regulation, and suggest an amendment. We see this area, we flag this area
where there are legal risks, the policy office will always take the lead and OGC will make sure it
meets APA requirements. We tend to be more involved where there is an interpretation, where it
concerns legality.”78 An official from another agency observed that “OGC are the APA lawyers.
If somebody came to us and said we want to do an interpretive rule that’s general or broad, we
would have a problem with that; we’d take a harder look at that.”79 At a third agency, OGC
affirmatively educated program offices about the distinction between general statements of policy
and interpretive rules.80 OGC would give trainings instructing agency officials that policy
statements set out “best practices,” provide that “you should do x,” or give examples of how a
program “might be implemented.”81 Interpretive rules, by contrast, had to be “linguistically tied to
a statutory or regulatory provision.”82 OGC would communicate the requirements of the OMB’s
Good Guidance Practices Bulletin to program components, including provisions relating to the use
of mandatory language in interpretive rules.83
Most of the agencies interviewed would provide for public comment on at least some of
their interpretive rules.84 Some of the agencies provide this opportunity as a matter of routine.85
Other agencies provide for public comment on “significant” interpretive rules, or interpretive rules
that are “high profile and controversial,” or some other subset of interpretive rules.86 Some
generally did not put out interpretive rules for public comment.87 For those agencies that did
sometimes provide for public comment, the form of input varied. At some agencies, public
75

Agency 3.

76

Agency 1; Agency 2; Agency 3; Agency 4; Agency 7; Agency 11.

77

Agency 7; Agency 11.

78

Agency 3.

79

Agency 11.

80

Agency 7.

81

Agency 7.

82

Agency 7.

83

Agency 7.

84

Agency 1; Agency 2; Agency 3; Agency 4; Agency 6; Agency 8; Agency 9; Agency 11.

85

Agency 1; Agency 4; Agency 6; Agency 9.

86

Agency 2; Agency 3; Agency 7; Agency 8; Agency 11.

87

Agency 5; Agency 10.

13

comment for interpretive rules was functionally identical with the notice and comment process for
legislative rulemaking.88 At others, the agencies would solicit comment before the interpretive rule
was issued and take it into account before finalizing it, but would not publish the same kind of
response to comments as would appear in a regulatory preamble.89 Another agency would issue
the final interpretive rule and state in the document that members of the public were welcome to
comment on the rule after the fact.90
Several agency officials were explicit about reasons why their agency seeks public
comment on interpretive rules.91 One agency put interpretive rules out for public comment, just
like any other form of guidance, so that “the content would be more considered.”92 Providing
opportunity for comment might earn an interpretive rule enhanced judicial deference.93 An official
from another agency agreed, stating that if the interpretive rule addresses “something high profile
and controversial, it may be useful to have public comment. . . . . In case there might be judicial
review, taking comments and responding to them . . . might help us build a better record for judicial
review.”94 An official from a different agency observed that, through public comment on
interpretive rules, “[w]e often get perspectives on what’s not clear, ambiguities, practicality,
transparency and buy-in. We definitely make changes in response to comments and occasionally
we might even decide that we might need to redo something. We get very substantive
comments.”95 An official from a third agency observed, “More public participation fosters a better
document, fosters a better understanding of a document, helps us to understand tradeoffs. . . .
Questions of law do sometimes require public input,” especially where the statutory language
includes “broad concepts. To the extent you have time and can do so, you can benefit from public
participation.”96 An official from another agency also explained the agency’s solicitation of
comments in functional terms: “We seek public comment because we want to get support and
comment from public. So we want to know, is there some unforeseen consequence we haven’t
thought about. We get a lot of supportive feedback. Even on those rules that we think are
procedural and interpretive rules, we’ll get feedback where we’ll modify the rule slightly.”97 The
perspective shared by these officials was that, at least in some cases, public comment could aid the

88

Agency 4; Agency 9.

89

Agency 1; Agency 2; Agency 3; Agency 8.

90

Agency 7.

91

Agency 1; Agency 3; Agency 4; Agency 6.

92

Agency 1.

93

Agency 1.

94

Agency 8.

95

Agency 4.

96

Agency 6.

97

Agency 9.

14

agency in reaching a factually well informed and legally defensible reading of statutory and
regulatory text.
On the other hand, officials from several agencies expressed the view that public comment
was not necessary or useful where the interpretive rule addressed a purely legal question.98 “Are
you really open to public comment on what the statute means?” one official asked, and then
answered that rhetorical question: “Not really. . . . If we think the statute says ‘x’ then that’s our
decision; it’s not a plebiscite.”99 At this agency, there had been internal disagreement over whether
to provide for public comment on a relatively high profile interpretive rule. The view of the general
counsel’s office was that “this interpretive rule did not need to go out for comment, given that it
was about the meaning of the law and not disputed questions of policy. But political leadership
overruled [them] on that.”100 An official from another agency similarly observed that “for an
interpretive rule, it’s a legal call: what is the strongest meaning of the statute? OGC wouldn’t go
out and ask for a legal interpretation from the public. That’s fully within the purview of our chief
legal officer.”101 An official from a third agency observed that where the “best read” of the statute
or regulation was clear to staff at the general counsel’s office “public comments might not be
appropriate there, because there is a legally correct answer.”102 For “policy matters,” by contrast,
“public comments would be a real positive.”103
The common perspective among this group of officials was that the task of interpreting an
agency’s organic statute or its own regulations was the special province of the agency’s legal
officials. In cases where traditional tools of legal interpretation led to an unambiguous conclusion,
therefore, public comment would not aid the legal staff in determining the statute’s or the
regulation’s meaning. The text, structure, purpose, and history of the relevant norms were
sufficient. Nonetheless, even though these agencies were doubtful that public comment would be
useful in drafting interpretive rules, they did not categorically deny the public the opportunity to
comment on that basis.

D. Binding Aspects of Interpretive Rules
Agencies had differing views on the extent to which interpretive rules could have internally
binding effect. Interviews focused on the questions of whether interpretive rules could use binding
language, whether the agency or its decisionmakers could depart from the terms of the interpretive
rule, and whether private parties could seek departure from the terms of the interpretive rule in

98

Agency 2; Agency 7; Agency 11.

99

Agency 2.

100

Agency 2.

101

Agency 11.

102

Agency 7.

103

Agency 7.

15

proceedings before the agency. Officials reported a wide range of views and practice on these
matters.
Officials interviewed recognized that interpretive rules could not create substantive legal
rights or obligations. But an agency might nonetheless use mandatory language where it came to
the conclusion that a particular provision in a legislative rule or a statute it administered had a
specific meaning. For example, regulation R might say “Regulated parties shall ‘q’,” and “q” could
reasonably mean “x” or “y.” The agency might conclude that the best construction of “q” was “x.”
It would then issue an interpretive rule stating “‘q’ means ‘x’ for the purpose of R.”104 Such an
interpretation would do more than “parrot” the language of the regulation, and instead “describe”
its requirements in a way that purports to resolve statutory ambiguities.105 In such a case, the
interpretive rule setting forth the agency’s construction of a statutory or regulatory norm would
speak in the same authoritative register as the binding norm itself. As one official put it, “you want
to speak in binding terms, because that’s your interpretation of binding law.”106 A contrary
approach could result in confusion for the agency and regulated parties. Officials at another agency
with licensing powers, for example, reported disagreements within the agency over whether
interpretive rules should use binding language.107 Because regulated parties would often lift
language directly out of interpretive rules in their applications for licenses, the use of precatory
language in the interpretive rule could create serious problems in investigation and enforcement—
the agency would have difficulty bringing an enforcement action against a party for failing to do
something they merely stated they “should” do in their approved application.108 Several agencies
negotiated the issue of binding language by including a proviso in interpretive rules that they were
not binding or did not create substantive rights, nothwithstanding that other terms of the
interpretive rule might be phrased as requirements.109
Beyond the question of binding language, agencies took different approaches concerning
the agency’s discretion to deviate from the terms of interpretive rules, as well as the opportunity
of private parties to contest them. Several agencies took the position that an interpretive rule could
not preclude case-by-case deviation from the rule’s terms.110 According to one official in an agency
with significant adjudicatory responsibilities, “We try pretty hard to walk the line in policy memos
[which include interpretive elements] to preserve adjudicators’ discretion. Certain things are
options, [e.g.,] here are factors that would be helpful in determining eligibility. The memos apply
to all personnel. Someone would have to consider the memorandum in adjudicating particular
issues [and] consider other relevant factors that may be presented by a party.”111 An official from
104

Example based on conversations with Agency 7 and Agency 8.

105

Agency 7.

106

Agency 7.

107

Agency 4.

108

Agency 4.

109

Agency 3; Agency 4; Agency 7; Agency 8.

110

Agency 3; Agency 6; Agency 8; Agency 10.

111

Agency 3.

16

another agency that focused its energies on enforcement emphasized that there was “definitely an
opportunity to contest” the position stated in an interpretive rule.112 At this agency, decisions about
whether or not private parties were in compliance would ultimately be fact-specific and based on
dialogue with regulated parties, rather than conformity with standards set in interpretive rules.113
An official from another agency affirmed that “if someone said, ‘this is not the correct
interpretation of the statute,’ we would hear them out.”114 However, it was unclear to this official
what such a dispute would look like in practice.
Other officials did, however, describe interpretive rules as binding in one sense or another.
An official from one agency that issues interpretive rules only occasionally viewed such rules as
“dispositive,” in the sense that the agency would not depart from the interpretation so long as it
remained in effect.115 The agency would entertain private parties’ legal objections to the
interpretation or claims that “fresh evidence” rendered it inappropriate.116 But the interpretive rule
would have to be amended or rescinded before the agency would deviate from its terms. This was
because agency attorneys “read our interpretive rule as being binding.”117 The official squared this
position with the doctrine that interpretive rules lack “the force of law” on the grounds that “[w]e
are only advising what the statute already says. It’s the statute that gives this the force of law. It’s
not the interpretation where the binding power originates.”118 The point of interpretive rules, for
this official, is to “address something definitive” where the legislative rulemaking process could
not meet that demand in time.119 Other interviewees, by contrast, spoke of binding effects in terms
of the impact of the rule on staff. More specifically, an official from another agency reported that
an interpretive rule could bind the division that issued it but could not bind the agency itself.120
Even though an interpretation might provide a “safe harbor” from enforcement by staff within the
agency, political leadership was not necessarily bound to adhere to such staff assurances.121
Officials from another agency with vast adjudicatory responsibilities similarly reported that the
agency mandated that frontline adjudicators conform their decisions to the positions stated in
interpretive rules.122 This level of binding effect was necessary to protect a “strong institutional
interest in people being treated fairly and being treated equally, and getting benefits they are
entitled to and desperately need.”123 Permitting adjudicatory departure from the rules would
undermine these rule of law values and programmatic considerations. Beneficiaries did have a
112

Agency 6.

113

Agency 6.

114

Agency 8.

115

Agency 11.

116

Agency 11.

117

Agency 11.

118

Agency 11.

119

Agency 11.

120

Agency 10.

121

Agency 10.

122

Agency 5.

123

Agency 5.

17

right to mount challenges to interpretive rules at the appellate adjudication level, but for practical
reasons such challenges were rarely pursued. Nonetheless, this agency held regular listening
sessions with stakeholder groups, in which objections to interpretive rules could be raised.

III. THE LEGAL BACKDROP
Part of the background of this project is the treatment that administrative law gives to
interpretive rules in various contexts. In this part we will briefly discuss the relevant doctrines.
We do not mean to suggest that the Conference should undertake to pronounce on the scope of
these legal principles. To the contrary, Recommendation 2017-5 focused on giving advice to
agencies as to best practices, and we presume that the Conference will adhere to that focus in the
present project. It would be difficult to reach a consensus on these issues in any event.
Nevertheless, legal norms often do shape administrative lawyers’ thinking about best
practices, and our experience from the interviews we conducted for this project bears out that
truism. In the case of policy statements, Anthony’s work on the case law regarding the APA
rulemaking exemption was closely integrated with his recommendations for Conference action,
and 92-2 did reflect those concerns. The question we will explore in this Part is whether the legal
background on interpretive rules sheds comparable light on practice issues. We conclude that it
does not.
The usual starting point for legal analysis of guidance is the APA, which mentions it in
several provisions. The most important of these textual reference points is § 553(b)(A), which
contains an exemption from notice-and-comment requirements for “interpretative rules, general
statements of policy, [and] rules of agency organization, procedure, or practice.”124 The text of
the Act does not expressly define those terms. To fill that gap, most authorities rely on the
definitions offered in the Attorney General’s Manual on the Administrative Procedure Act, the
Justice Department’s widely respected explication of the Act. The Manual defined substantive
rules (today more often called legislative rules) as rules “issued by an agency pursuant to statutory
authority and which implement the statute, as, for example, the proxy rules issued by the Securities
and Exchange Commission (SEC) pursuant to § 14 of the Securities Exchange Act of 1934. Such
rules have the force and effect of law.”125 In contrast, “interpretative” rules were “rules or
statements issued by an agency to advise the public of the agency’s construction of the statutes
and rules which it administers.”126 General statements of policy were “statements issued by an

124

Like most other authors, we use the term “interpretive” in place of the APA’s word “interpretative.” Procedural
rules, also mentioned in § 553(b)(A), are outside the scope of this report.
125

U.S. DEP’T OF JUSTICE, ATTORNEY GENERAL’S MANUAL ON THE ADMINISTRATIVE PROCEDURE ACT 30 n.3 (1947)
(citations omitted).
126

Id. (citations omitted).

18

agency to advise the public prospectively of the manner in which the agency proposes to exercise
a discretionary power.”127
In Chrysler Corp. v. Brown,128 the Supreme Court drew attention to the statement in the
Manual that substantive rules “have the force and effect of law.”129 “In contrast,” the Court
continued, the Manual “suggests that interpretative rules and policy statements do not have the
force and effect of law.” That remark was written more than forty years ago, but the Supreme
Court reaffirmed its thrust only a few years ago in Perez v. Mortgage Bankers Ass’n, 130 referring
to “the longstanding recognition that interpretive rules do not have the force and effect of law.”131
Notwithstanding this seemingly unequivocal premise, however, one finds language in a
variety of doctrinal areas to the effect that interpretive rules may be binding after all. Given the
emphasis in Recommendation 2017-5 on the proposition that policy statements are not binding,
and our charge to consider whether the principles of the recommendation should be applied to
interpretive rules, we will need to examine this case law critically.
These divergences in perspective may reflect, to some extent, semantic differences. Courts
and commentators have used the term “binding” in varying ways.132 The issue raised by the
authorities quoted just above was whether or not a rule was legally binding. Recommendations
92-2 and 2017-5 expanded upon this conception (or at least one aspect of it) by asking whether a
guidance document was or was not practically binding. In this context, the recommendations
contemplated that a guidance document would be “binding” if an agency would not give fair
consideration to an interested person’s request that the agency should rescind or modify the
document or at least treat it as inapplicable to a given dispute.133 We use the term in the same
sense here. However, the term “binding” can have a different meaning in, for example, the judicial
review context. One purpose of this part of our report is to distinguish those meanings from the
one with which the report is concerned.

127

Id.

128

441 U.S. 281 (1979).

129

Id. at 302 n.31.

130

135 S. Ct. 1199 (2015).

131

Id. at 1208.

132

See generally Emerson, supra note 19, at 2130-32, 2142-56 (describing use of the term “binding” to mean either
compelling official action, or establshing legal obligations or rights for private persons, or merely threatening
governmental sanction in a way that shapes private behavior.)
133

The recommendations also framed the issue by providing that “an agency rule is ‘binding’ when the agency treats
it as a standard where noncompliance may form an independent basis for action in matters that determine the rights
and obligations of any person outside the agency.” Recommendation 92-2, supra note 10, at 30,104 & n.3;
Recommendation 2017-5, ¶ 1. We take this usage to be equivalent to the concept explained in the above text.

19

A. Rulemaking Exemption
The postulate just mentioned – that guidance documents lack the force of law – logically
implies that such documents should not be applied in a binding fashion. Insofar as policy
statements are concerned, that premise pervades Recommendations 92-2 and 2017-5, as well as
the case law construing and applying the rulemaking exemption in the APA.
For decades, however, case law construing the APA’s interpretive rules exemption has
turned on other inquiries. The most prominent test applying the interpretive rules exemption
compares the substance of the rule’s interpretation with the text of the provision (statute or
regulation) that it interprets. To qualify for the exemption, the interpretation must be “derived
from the [interpreted text] by a process reasonably described as interpretive,”134 or, to use another
formulation, “spells out a duty that is ‘fairly encompassed’ within the [statute or] regulation that
the interpretation purports to construe.”135 Another test is that of American Mining Congress v.
MSHA,136 which said that a court could determine whether a purported interpretive rule should be
deemed legislative by asking whether any of the following four conditions were satisfied: “(1)
whether in the absence of the rule there would not be an adequate legislative basis for enforcement
action or other agency action to confer benefits or ensure the performance of duties, (2) whether
the agency has published the rule in the Code of Federal Regulations, (3) whether the agency has
explicitly invoked its general legislative authority, or (4) whether the rule effectively amends a
prior legislative rule.”137
A detailed review of these precedents in this report would serve no purpose, although it
should be noted that scholars who have examined the case law on this subject have expressed
strong criticisms of it.138 Suffice it to say that the cases turn on conceptual criteria that do not seem
to have much to offer in terms of suggesting norms that might shed light on the question of whether
or how the Conference should apply the principles of Recommendation 2017-5 to interpretive
rules.
More directly relevant here is what these cases do not say. As currently understood, the
case law on the APA exemption for interpretive rules does not generally prohibit agencies from

134

Hoctor v. U.S. Dept. of Agric., 82 F.3d 165, 170 (7th Cir. 1996).

135

Air Transp. Ass’n of Am. v. FAA, 291 F.3d 49, 55–56 (D.C. Cir. 2002); see also Catholic Health Initiatives v.
Sebelius, 618 F.3d 490, 494 (D.C. Cir. 2010) (“The substance of the derived proposition must flow fairly from the
substance of the existing document.”).
136

995 F.2d 1106 (D.C. Cir. 1993).

137

Id. at 1112.

138

See, e.g., Michael Asimow, Public Participation in the Adoption of Temporary Tax Regulations, 44 TAX LAW. 343,
353, 357 (1991) (calling the case law “exceptionally elusive” and “maddeningly indeterminate”); Jacob E. Gersen,
Legislative Rules Revisited, 74 U. CHI. L. REV. 1705, 1705 (2007) (contending that the debate over this exemption
“conjure[s] doctrinal phantoms, circular analytics, and fundamental disagreement even about correct vocabulary”).
For a recent, extensive critique of the case law applying the interpretive rules exemption, see Levin, Guidance
Exemption, supra note 9, at 317-45.

20

treating those rules as binding. There is a serious argument that it should,139 but the Administrative
Conference is not going to resolve that issue in this project. For present purposes, the key question
is whether the case law and scholarship on the exemption embodies norms or value judgments that
could be applied to the best-practice context that ACUS does address. In other words, does that
literature suggest reasons why, as a matter of sound practice, agencies should feel free to treat their
interpretive rules in a more binding fashion than Recommendation 2017-5 advises with regard to
their policy statements?
The judicial and academic literature on the APA rulemaking exemption contains
surprisingly little exploration of that issue. Some cases do state that nonlegislative rules –
including interpretive rules – are not binding.140 That is just what one might expect in light of the
statement in Mortgage Bankers that interpretive rules do not have the force of law. Elsewhere,
however, judges and scholars have occasionally offered affirmative justifications for the notion
that an interpretive rule should be immune from being contested within an agency. We now turn
to an examination of their reasoning.
First, Professor Anthony, the Conference’s consultant for Recommendation 92-2, argued
that an agency should feel free to apply an interpretive rule in a rigid, binding way because “the
agency (at least in theory) is simply applying existing law and not creating new law.”141 However,
the premise of that claim is not convincing. Kenneth Culp Davis forcefully challenged it many
years ago:
The conception that interpretative rules do not embody new law but merely interpret
previous law seldom accords with the reality. Here as elsewhere the process of
interpretation necessarily involves the creation of new law. . . . The theoretical distinction
between legislative and interpretative rules is imperfect. . . . But the case law and the
practices of the agencies can be gradually molded to get rid of the misconception that what
is theoretically interpretation never involves the creation of new law.142
In any event, whatever one’s jurisprudential views about statutory interpretation, it is a fact of life
that lawyers frequently disagree about what a statute or regulation means. Consequently, input
from interested persons as to what interpretation the agency should adopt is hardly extraneous. As
Levin wrote in his recent article:

139

Levin, Guidance Exemption, supra note 9, at 346-53.

140

See, e.g., Ass’n of Flight Attendants-CWA v. Huerta, 785 F.3d 710 (D.C. Cir. 2015); Vietnam Veterans of Am. v.
Sec’y of the Navy, 843 F.2d 528, 537–38 (D.C. Cir. 1988) (“[T]he agency remains free in any particular case to
diverge from whatever outcome the policy statement or interpretive rule might suggest. . . . In such a case, any affected
private party is free to appeal to the agency for such a divergent result.”); Nat’l Latino Media Coal. v. FCC, 816 F.2d
785, 788 (D.C. Cir. 1987) (“an interpretative rule does not have the force of law and is not binding on anyone”).
141

Anthony, supra note 11, at 1375-76.

142

Kenneth Culp Davis, Administrative Rules—Interpretative, Legislative, and Retroactive, 57 YALE L.J. 919, 93334 (1948).

21

A choice among competing interpretations is still a choice, even if circumscribed, and the
public has an interest in weighing in on those choices, which are often hotly contested.
[T]he notion that the interpretation needs no formalities because it can be conceived as
‘merely spelling out what is in some sense latent in a statute or regulation’ begs the
question, because the public has an interest in being heard on the issue of what the latent
messages may be.143
Moreover, on a more practical level, “[t]he discipline of having to respond to the perspectives of
interested private parties is bound to enhance the quality of the legal interpretations that agencies
adopt. Further, an agency’s willingness to listen and respond to parties’ arguments should bolster
the legitimacy of its ultimate stances.”144
Second, it has been argued that an interpretive rule must be binding because it explicates
the meaning of a statute or regulation that is itself binding. This seems to be the premise of the
Seventh Circuit’s remark in Metropolitan School District v. Davila: “All rules which interpret the
underlying statute must be binding because they set forth what the agency believes is congressional
intent. Could an agency announce, ‘We think Congress intended this when it enacted this statute,
but you don't have to do it.’?”145
It is possible that the only point that the court in Davila intended to make was that an
interpretive rule may legitimately use mandatory language without losing its identity as a
nonlegislative rule that is exempt from notice-and-comment obligations. That proposition is well
accepted among administrative lawyers, as can be discerned from the OMB Good Guidance
Practices Bulletin as well as Recommendation 2017-5 itself.146 Indeed, an alleged violation of the
APA rulemaking requirements was the only issue before the court, and the court did not discuss
the agency’s actual practices in administering the rule. If, however, the court meant to say that an
agency may, on the basis of this theory, refuse to allow a person to raise questions about the
correctness of the agency’s interpretation, its claim did not follow from its premise. The very
purpose of an interpretive rule, at least in most instances, is to specify which of various conceivable
readings of the interpreted text the agency considers correct. Normally, the agency will have
promulgated the rule precisely because there has been doubt about that issue. It begs the question
to suggest that if the statute or regulation is binding, the interpretation that the agency happens to
have chosen must also be binding.
Third, the Sixth Circuit suggested in Dismas Charities, Inc. v. U.S. Department of Justice147
that notice and comment on interpretive rules is not required because it simply would not be
illuminating: “The interpretative rule exception reflects the idea that public input will not help the
agency make the legal determination of what the law already is.”148 That explanation, however, is
143

Levin, Guidance Exemption, supra note 9, at 334-35.

144

Id. at 329.

145

Metro. School Dist. v. Davila, 969 F.2d 485, 493 (7th Cir. 1992).

146

See supra note 14 and accompanying text.

147

401 F.3d 666 (6th Cir. 2005).

148

Id. at 679–80.

22

belied by basic norms of our legal system. On an everyday basis, courts and agencies resolve
interpretive questions (like other questions) after considering competing arguments from interested
persons.
In sum, an examination of judicial and scholarly sources discussing the APA exemption
for interpretive rules suggests that their policy arguments for allowing agencies to treat such rules
in a more binding fashion than they would treat policy statements are sparse and misdirected, or
at best debatable. This conclusion may or may not indicate that the case law itself should be
reappraised. As we emphasized above, the challenge for ACUS will be one of defining best
practices, not resolving disputed legal questions. At least, however, the foregoing analysis appears
to indicate that these authorities say little or nothing to detract from proposals to expand the
principles of Recommendation 2017-5 to reach interpretive rules.

B. Judicial Deference
Another context in which interpretive rules have been characterized as “binding” is in
certain discussions of judicial deference. As we will explain, that characterization arises only in
the context of a subclass of interpretive rules, is controversial on its own terms, and soon may be
a thing of the past. However, even if one takes that description at face value, it does not necessarily
militate against an extension of the principles of Recommendation 2017-5 to interpretive rules. In
fact, in some ways, deference doctrine may actually militate in favor of such an extension.
We will begin with some basics. Courts do not generally regard interpretive rules that
construe statutes as ‘binding.’ Since 2000149 it has been clear that courts should review such rules
using the review standard of Skidmore v Swift & Co.150 Under that test, the agency’s interpretation
is “entitled to respect,” but its weight depends on its “power to persuade,” because it is “not
controlling on the courts by reason of [its] authority.”151
The doctrine regarding the deference that courts owe to interpretive rules that construe
regulations is more contested. The applicable review standard, at least at present, is that of Auer
v. Robbins152 (previously called the Seminole Rock test153). Under Auer, the agency’s
interpretation of its own regulation is “controlling unless ‘plainly erroneous or inconsistent with
the regulation.’” Justice Scalia contended a few years ago that this test does render interpretive

149

See Christensen v. Harris County, 529 U.S. 576 (2000).

150

323 U.S. 134 (1944).

151

Id. at 140. There have been exceptions, such as Barnhart v. Walton, 535 U.S. 212, 221-22 (2002) (applying
Chevron to review of an interpretive rule), but they are very rare.
152

Auer v. Robbins, 519 U.S. 452, 461 (1997).

153

Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945).

23

rules “binding.” Concurring in the result in Perez v. Mortgage Bankers Ass’n,154 he argued as
follows:
By supplementing the APA with judge-made doctrines of deference, we have
revolutionized the import of interpretive rules' exemption from notice-and-comment
rulemaking. Agencies may now use these rules not just to advise the public, but also to
bind them. After all, if an interpretive rule gets deference, the people are bound to obey it
on pain of sanction, no less surely than they are bound to obey substantive rules, which are
accorded similar deference. Interpretive rules that command deference do have the force
of law.155
Justice Thomas’s concurring opinion in that case also endorsed the view that Auer deference
effectively makes agency interpretations of their own rules binding.”156
However, Justice Sotomayor’s majority opinion in Mortgage Bankers expressly disagreed
with Justices Scalia and Thomas on this issue:
MBA alternatively suggests that interpretive rules have the force of law because an
agency's interpretation of its own regulations may be entitled to deference under Auer v.
Robbins and Bowles v. Seminole Rock & Sand Co. Even in cases where an agency's
interpretation receives Auer deference, however, it is the court that ultimately decides
whether a given regulation means what the agency says.157
The life span of this disagreement may turn out to be fleeting, because in December 2018
the Supreme Court granted certiorari in Kisor v. Wilkie158 for the precise purpose of considering
whether to overrule Auer. If the Court does decide to overrule that case, one cannot be sure what
review standard would take the place of Auer deference, but precedent suggests that the Court will
decide that judicial review of agencies’ interpretations of their own regulations should henceforth
be governed by Skidmore instead.159 In that event, presumably, the above analysis of judicial
deference to agency interpretations of statutes would apply in this context as well.
These disputed questions about deference doctrine obviously do not lend themselves to
being resolved in a recommendation of the Administrative Conference. In our view, however, the
Conference does not need to resolve them in order to decide whether the principles of
Recommendation 2017-5 should apply to interpretive rules. Even if one believes that a reviewing
court is “bound” by an interpretive rule under deference principles, that assessment does not have
to mean that the agency need not allow affected persons to contest a rule at the administrative
level, as a matter of good practice. The former simply doesn’t foreclose the latter. The principles

154

135 S. Ct. 1199 (2015).

155

Id. at 1211 (Scalia, J., concurring in the judgment).

156

Id. at 1219-20, 1221 (Thomas, J., concurring in the judgment).

157

Id. at 1208 n.4 (opinion of the Court).

158

139 S. Ct. 657 (2018).

159

Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 159 (2012).

24

of the recommendation are behavioral norms. The agency can observe them (or not) without
regard to what level of deference the courts would later accord to the rule during judicial review.
Indeed, in several respects the prospect of deference at the judicial level may strengthen
the argument that ACUS should encourage agencies to allow dialogue about their interpretive rules
at the administrative level. From the point of view of a member of the public, the opportunity to
present a view in the agency forum may be critical, because whatever choice the agency makes
will stand as long as it meets the level of reasonableness that the applicable standard of judicial
review requires. Even Skidmore review is more deferential than review in which the court reviews
de novo.160 Of course, this argument will apply all the more strongly if Auer remains in force.
At the same time, deference doctrine suggests a few reasons why agencies themselves may
benefit if they allow affected persons a “fair opportunity” to take issue with their interpretive rules.
In the first place, when Skidmore does apply to review of an interpretive rule, the weight of the
agency’s judgment is supposed to depend in part on “the thoroughness evident in its
consideration.”161 Thus, the very fact that the agency did engage in a dialogue with interested
persons at the administrative level may ultimately give the agency a better chance of prevailing
when its interpretation is tested on appeal. Secondly, dialogue about an interpretive rule at the
administrative level can encourage the agency to build a record that it can then use in the event of
judicial review. In other words, the agency may be induced to construct a body of reasoning—
including responses to the challenger’s contentions—at a time when responsible officials are in
the best position to do so. The alternative for the agency is to formulate and present responses to
those contentions for the first time at the judicial review stage. At that point, the court might well
discount the government’s arguments as “post hoc rationalizations.”

C. Access to Judicial Review
A final doctrinal area to consider is reviewability. One might initially think that questions
regarding access to judicial review of agency action have nothing to do with the intra-agency
concerns of Recommendation 2017-5. However, a considerable body of case law, particularly
emanating from the D.C. Circuit, rests on the premise that the issue of whether a purported policy
statement or interpretive rule is susceptible of preenforcement review is largely coextensive with
the issue of whether the document has such binding or coercive force as to fall outside the APA
rulemaking exemption.162 As we said above, settling such doctrinal disputes is not the purpose of
this project or this report. Nevertheless, it is a fact that some administrative lawyers, inside and
outside government, are inclined to believe that these two areas of doctrine do coincide;163 this fact
160

See Kent Barnett & Christopher J. Walker, Chevron in the Circuit Courts, 116 MICH. L. REV. 1, 30 (2017)
(presenting empirical data suggesting that agencies win more often when Skidmore applies than when courts review
de novo).
161

Skidmore, 323 U.S. at 140.

162

See infra notes 172-173 and accompanying text (citing cases).

163

One of our interviewees expressed this view. Agency 8.

25

suggests that we cannot evaluate the possible relevance of legal doctrine to our subject without
paying at least some attention to reviewability principles. The conclusion that we draw from those
principles is that, especially where interpretive rules do not qualify for preenforcement review, an
opportunity to challenge the rule before the agency may provide a crucial safeguard.
Until about twenty years ago, questions about the reviewability of guidance documents
were addressed with a focus on the doctrine of ripeness. The case law was plentiful and not entirely
consistent,164 but we will not linger on it. Ripeness is basically a function of whether the issue
raised in the appeal is fit for judicial review and whether the person seeking judicial review would
experience hardship if review were withheld.165 Even on their face, those criteria do not seem to
have much to say about the “practical binding effect” problems underlying Recommendation
2017-5. Meanwhile, the APA’s requirement of “final agency action”166 was applied “in a
pragmatic way” during this period.167
During the past two decades, however, the issue of whether an interpretive rule or policy
statement constitutes “final agency action” has become more prominent and sometimes applied
more restrictively. The dominant Supreme Court case is Bennett v. Spear,168 which articulates a
two-prong test for deciding whether a rule is “final agency action”: “First, the action must mark
the ‘consummation’ of the agency's decision making process—it must not be of a merely tentative
or interlocutory nature. And second, the action must be one by which ‘rights or obligations have
been determined,’ or from which ‘legal consequences will flow.’”169 Application of the first of
these prongs is generally (with a few exceptions170) quite straightforward. In this context, it
basically means that one may not seek review of a rule, including a guidance document, while the
agency is still in the process of developing the rule.171
In contrast, the second prong is ambiguous and has been the subject of much debate and
disagreement. The ambiguity goes to whether the effects to which the test refers must be legally
operative, or can extend to practical consequences that have a profound effect on the party who
has sought judicial review. Taking the former view, the D.C. Circuit has handed down a number
of decisions that hold that a document had no legal effect and was thus a bona fide guidance for
APA purposes, so it was also unreviewable; and, conversely, if the court finds that a purported
guidance was actually a legislative rule for purposes of finality, it must also be invalid if not
adopted with notice and comment procedure. Many, perhaps most, of these decisions have
164

2 KRISTIN E. HICKMAN & RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 17.15 (6th ed. 2018).

165

Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49 (1967).

166

5 U.S.C. § 704 (2012).

167

Abbott Laboratories, 387 U.S. at 149-52.

168

520 U.S. 154 (1997).

169

Id. at 177-78 (citations omitted).

170

See Soundboard Ass’n v. FTC, 888 F.3d 1261 (D.C. Cir. 2018) (holding by 2-1 vote that staff opinion letter was
unreviewable because Commission had not approved it).
171

Cf. In re Murray Energy Corp., 788 F.3d 330, 334-35 (D.C. Cir. 2015) (so holding, with regard to a proposed
legislative rule).

26

involved policy statements,172 but the same principle has also found its way into the case law on
review of interpretive rules.173
It cannot be said that the law has reached equilibrium on this topic. As Professor William
Funk documented in a recent article, a host of pre-Bennett opinions had taken a more flexible and
pragmatic approach to defining finality.174 Indeed, he notes, the action that the Court found to be
final in Bennett itself “did not determine any rights or obligations, and any legal consequences
were significantly attenuated.”175 The Supreme Court’s very recent decision in United States Army
Corps of Engineers v. Hawkes176 resulted in fragmented opinions by various Justices, thus offering
further evidence of doctrinal instability.177 Moreover, even the D.C. Circuit has manifested some
lack of resolve on this issue. In National Mining Association v. McCarthy,178 the court remarked
that interpretive rules are “sometimes” reviewable on a pre-enforcement basis,179 although a later
opinion by the court seemed to recede from this concession.180 Meanwhile, there are also
significant criticisms of the formalist approach in the scholarly literature.181
As already stated, insofar as the pragmatic approach to finality is followed, it would seem
to undermine any link between finality and the concerns of Recommendation 2017-5. For the sake
of discussion, however, we may assume for the moment that the formalist reading of Bennett is
essentially correct. Even on that premise, the logic of the formalist approach does not necessarily

172
See, e.g., Ctr. for Auto Safety v. NHTSA, 758 F.3d 243 (D.C. Cir. 2014); NRDC v. EPA, 643 F.3d 311, 319-20
(D.C. Cir. 2011); Nat’l Home Builders Ass’n v. Norton, 415 F.3d 8, 13-16 (D.C. Cir. 2005).
173

See, e.g., Ass’n of Flight Attendants-CWA v. Huerta, 785 F.3d 710, 716 (D.C. Cir. 2015) (“In this case, it really
does not matter whether the [challenged guidance] is viewed as a policy statement or an interpretive rule.”); Nat’l
Mining Ass’n v. McCarthy, 758 F.3d 243 (D.C. Cir. 2014) (dictum) (discussed infra note 179 and accompanying
text); Am. Tort Reform Ass’n v. OSHA, 738 F.3d 387, 395 (D.C. Cir. 2013); Sec. Indus. & Fin. Mkts. Ass’n v. CFTC,
67 F. Supp. 3d 373, 424-25 (D.D.C. 2014).
174

William Funk, Final Agency Action After Hawkes, 11 N.Y.U. J.L. & LIBERTY 285, 294-99 (2017).

175

Id. at 301.

176

136 S. Ct. 1807 (2016).

177

In Hawkes the Court held that a “jurisdictional determination” (JD) by the Army Corps of Engineers was a final
agency action. One concurring Justice relied heavily on the existence of an interagency memorandum of agreement
that, in her view, established that the JD was “binding on the Government.” Id. at 1817 (Kagan, J., concurring).
Another concurrence, in contrast, found that the JD was final without regard to the memorandum. Id. at 1817-18
(Ginsburg, concurring in part and concurring in the judgment). The Chief Justice’s opinion for the majority appeared
to straddle these two positions, highlighting the memorandum but also emphasizing that pragmatic factors supported
the Court’s result. Id. at 1814-15 (opinion of the Court).
178

758 F.3d 243 (D.C. Cir. 2014).

179

Id. at 251.

180

Ass’n of Flight Attendants-CWA v. Huerta, 785 F.3d 710 (D.C. Cir. 2015).

181

See, e.g., Funk, supra note 174, at 305-07; Gwendolyn McKee, Judicial Review of Agency Guidance Documents:
Rethinking the Finality Doctrine, 60 ADMIN. L. REV. 371 (2008); Mark Seidenfeld, Substituting Substantive for
Procedural Review of Guidance Documents, 90 TEX. L. REV. 331, 379-80 (2011); Peter L. Strauss, Domesticating
Guidance, ENVTL. L. (forthcoming), at 15-17, https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID3321446_code481
84.pdf?abstractid=3321446&mirid=1; Recent Case, 132 HARV. L. REV. 1345 (2019).

27

answer the questions that our project raises. In Center for Auto Safety v. NHTSA,182 the D.C.
Circuit found that a policy statement was not reviewable immediately because it did not have
formal legal effect, even though it did have practical binding effect.183 Yet practical binding effect
is the very issue with which Recommendations 92-2 and 2017-5 are concerned. What Center for
Auto Safety illustrates, then, is that a policy statement may be unreviewable for judicial review
purposes but may also fall squarely within the purview of Recommendation 2017-5. It seems
reasonable to think, therefore, that an interpretive rule might similarly be unreviewable for finality
purposes but could also become the subject of a Conference recommendation growing out of the
present project.
To put the matter another way, finality case law may or may not, in various circumstances,
determine whether a given guidance document must be reclassified as a legislative rule and become
subject to notice and comment; but the essential goal of Conference recommendations in this area
is to address the manner in which agencies should draft and implement documents that assumedly
are exempt from APA rulemaking requirements.
Indeed, insofar as an interpretive rule is not a final agency action that could readily be
brought before the courts, that circumstance may strengthen challengers’ interest in obtaining
consideration of their positions at the agency level. Our point here is similar to the one we made
at the end of the preceding section about the prospect of judicial deference to the substance of an
interpretive rule.

IV. INTERPRETIVE RULES AND THE PRINCIPLES OF RECOMMENDATION 2017-5
This part of our report seeks to frame issues that the Conference might address in a potential
recommendation on interpretive rules. We summarize several factors that militate in favor of
extending many of the principles of Recommendation 2017-5 to such rules. We also discuss
various arguable differences between interpretive rules and policy statements—differences that
might warrant the Conference’s adopting recommendations that would differentiate between these
two forms of guidance. We draw here from the interview data summarized in Part II, as well as
from Professor Parrillo’s report, our own research, and discussions that occurred during the
Conference’s earlier consideration of Recommendation 2017-5.

A. Public Participation in the Drafting or Reconsideration of Interpretive Rules
1. Pre-adoption public participation
In ¶ 9, Recommendation 2017-5 suggests factors for agencies to take into account as they
decide whether and how to solicit public input in the course of promulgating or amending policy

182

452 F.3d 798 (D.C. Cir. 2006).

183

See id. at 811. To similar effect, see Air Brake Sys., Inc. v. Mineta, 357 F.3d 632, 645 (6th Cir. 2004).

28

statements. In our view, essentially the same principles should apply in the interpretive rules
context.
One theme that emerged from the interviews is that a number of agencies appear to treat
interpretive rules and policy statements equally in practices aimed at eliciting public participation
in their formulation and implementation of these documents. As Parrillo reported, this approach
is set forth in written practice rules at some agencies, including the FDA and USDA.184 The
Conference took note of these policies in its recommendation.185
In the interviews, as we discussed in Part II.C., agency officials expressed a range of
opinions about the inherent value of such input, including input on legal issues. Some saw virtues
in the practice. They said, for example, that public input can help them spot ambiguities, anticipate
practical consequences of an interpretation, and build public support for the interpretive rule.
Moreover, the discipline of taking comments and responding to them (if the agency chooses to
respond) can help to build a record for judicial review. On the other hand, some of the interviewees
expressed a contrasting viewpoint, suggesting that they have little if any interest in hearing from
the public about their interpretive rules. The thrust of their arguments was that they themselves
know their statutes and can identify a legally correct answer; issuance of guidance is “not a
plebiscite.”186
These latter comments are reminiscent of the Sixth Circuit opinion discussed in Part
III.A.,187 but we doubt that in the last analysis they will prove palatable to the Conference as a
whole. Longstanding ACUS positions suggest that these reservations about the potential value of
public input in the development of interpretive rules are too broadly stated. Although the APA
does exempt both interpretive rules and policy statements from notice-and-comment obligations,
the Conference has for many years urged agencies to obtain public input voluntarily in their
development of at least some rules in both categories. According to ACUS Recommendation 765:
At times policy statements and interpretive rules are barely distinguishable from
substantive rules for which notice and comment is required. For that and other reasons
many agencies have often utilized the notice-and-comment procedures set forth in section
553 of the Act, without regard to whether their pronouncements fall into one category or
another. This is, in general, beneficial to both the agencies and potentially affected
elements of the public. Providing opportunity for comment upon interpretive rules and
184
Parrillo, supra note 3, at 168-69. The NRC has a similar rule, with certain exceptions allowed. See 10 C.F.R. §
2.804(e)(2) (“The Commission shall provide for a 30-day post-promulgation comment period for — . . . (2) Any
interpretative rule, or general statement of policy adopted without notice and comment . . . except for those cases for
which the Commission finds that such procedures would serve no public interest, or would be so burdensome as to
outweigh any foreseeable gain.”).
185

Recommendation 2017-5, at 61,735 & n.12.

186

Agency 2.

187

See supra note 147 and accompanying text (discussing Dismas v. U.S. Dept. of Justice, 401 F.3d 666 (6th Cir.
2005)).

29

policy statements of general applicability, sometimes before and sometimes after their
adoption, makes for greater confidence in and broader acceptance of the ultimate agency
judgments.188
Indeed, in the context of rulemaking proceedings to which the APA requirements do apply, it is
common if not routine for comments to address purely interpretive issues and for agencies to
consider them seriously; indeed, an agency’s failure to consider such comments would invite
judicial reversal. Although we do not mean to equate the legislative rulemaking process with the
process of drafting guidance, these well-accepted APA expectations add persuasive support for the
proposition that public comments submitted on the identical issues during the promulgation of
interpretive rules do have intrinsic value.
At the same time, the skepticism expressed by some agency officials is well taken insofar
as it suggests that an agency should not necessarily be expected to solicit public input on a
proposed interpretive rule in every instance. Paragraph 9 of Recommendation 2017-5 itself sets
forth factors that agencies should consider in deciding whether and how to solicit public
participation before adopting or modifying a policy statement. The factors include the
applicability of any existing procedures; the likely increase in useful information and public
acceptability that would result from broadening participation; the practicability of such
participation; and the magnitude of the impact of the proposed rule on interested parties.189 Most,
if not all, of these factors could readily be applied in the interpretive rule context.
2. Post-adoption public participation
The above discussion focuses on the benefits of public participation in advance of the
issuance of an interpretive rule. One might ask whether an agency could likewise derive such
benefits in the context of entertaining requests to reconsider interpretive rules that have already
been issued. We believe they could.
Recommendation 76-5 and ¶ 10 of Recommendation 2017-5 encouraged agencies to solicit
post-promulgation comments on guidance documents. In Recommendation 2017-5 the
encouragement applied only to policy statements, but in Recommendation 76-5 it applied to both
policy statements and interpretive rules (if they are likely to have a substantial impact upon the
public). Presumably, similar benefits could be expected in the context of requests that develop in
other contexts, such as in an enforcement proceeding or in response to an inquiry initiated by a
member of the public. As discussed in Part II of this Report, several agencies provide such an ex

188

ACUS Recommendation 76-5, Interpretive Rules of General Applicability and Statements of General Policy, 41
Fed. Reg. 56,769 (Dec. 30, 1976); see also Michael Asimow, Public Participation in the Adoption of Interpretive
Rules and Policy Statements, 75 MICH. L. REV. 520, 573-75 (1977) (summarizing the policy basis for this
recommendation). The ABA has made a substantially equivalent recommendation. ABA Recommendation 120C,
118-2 A.B.A. ANN. REP. 57 (1993).
189

“Impact” is included within this calculus by virtue of ¶ 8(a), incorporated by reference into ¶ 9(b). To this extent,
the factors identified for consideration in Recommendation 2017-5 can be harmonized with the “substantial impact”
threshold test in Recommendation 76-5.

30

post opportunity for input, ranging from entertaining emailed comments on published documents
to case-by-case engagement with particular regulated parties.
Although ¶ 10 of Recommendation 2017-5 did not expressly say that an agency considering
solicitation of post hoc public input should take into account the prudential factors listed in ¶ 9,
the parallel construction of these two paragraphs at least implies that it should. By extension,
therefore, one might infer that these factors would also be relevant to an agency’s decision about
whether and how to solicit post hoc public input on interpretive rules.
The potential benefits from such a post hoc opportunity for input would be most evident
when there are affirmative indications that circumstances have changed since the rule was adopted.
Those changes might be attributable to turnover in the agency’s leadership or staffing on the issue
involved (whether or not due to the advent of a new presidential administration). Or they might
result from an alteration in the facts on the ground, or evolution in the surrounding legal landscape.
As Justice Ginsburg pointed out in a very recent opinion, “[w]ords in statutes can enlarge or
contract their scope as other changes, in law or in the world, require their application to new
instances or make old applications anachronistic.’”190 Even if no such change in circumstances is
immediately apparent, interaction with persons who may wish to take issue with the interpretive
rule would enable the agency to come to terms with a viewpoint other than its own.
But what if the agency actually did invite public participation during the drafting of its
interpretive rule – as some of the counsel quoted in Part II say they frequently do? Such
participation might entail either notice-and-comment or, perhaps, one of the more informal
methods discussed in Recommendation 2017-5.191 One could argue that, under these
circumstances, an agency should not be expected to allow challenges to the merits of the rule as
the agency proceeds to apply the rule in later regulatory action. It may be thought that this “second
look” might have minimal payoffs, insufficient to justify any notion that the agency should be
receptive to a challenge to the interpretive rule whenever a dissatisfied citizen wishes to lodge one.
Indeed, one of our interviewees, a staff member of an independent commission, remarked that
procedural expectations described in Recommendation 2017-5 “should not apply to the
interpretive rules that have gone through the notice and comment.”192
Certainly, an agency has a significant interest in being able to manage its workload and set
priorities; the Conference has recognized as much in, for example, the context of petitions for
rulemaking.193 One implication of that truism is that an agency should have a degree of latitude
to limit the circumstances in which it will entertain requests to reconsider an interpretive guidance
document. It might understandably decide to be less accommodating to such requests when they
190

New Prime, Inc. v. Oliveira, 139 S. Ct. 32, 544 (2019) (Ginsburg, J., concurring) (quoting West v. Gibson, 527 U.
S. 212, 218 (1999)).
191

Recommendation 2017-5, ¶ 8.

192

Agency 10.

193

See ACUS Recommendation 2014-6, Petitions for Rulemaking, 79 Fed. Reg. 75,117, 75,118 (Dec. 17, 2014)
(recommending measures to make the right to petition meaningful, but also observing that “petitions for rulemaking
may adversely affect an agency’s ability to control its agenda and make considered, holistic judgments about
regulatory priorities, particularly in the face of limited resources”).

31

are directed toward interpretations that the agency has already devoted substantial resources to
examining. Moreover, even when an agency has chosen to make opportunities for reconsideration
generally available, it should be able to deal summarily with requests that it finds to be obstructive,
dilatory, or otherwise tendered in apparent bad faith. It should not be expected to entertain and
respond in detail to unfounded or frivolous challenges to the agency’s position.
That said, however, we would not endorse a blanket policy of refusing to entertain requests
for reconsideration of an interpretive rule (or policy statement) that had originally been issued after
an opportunity for public input had been afforded. The above point about changed circumstances
might still apply in such situations. Furthermore, at least some persons affected by a guidance
document may not have participated in the earlier outreach effort, perhaps for entirely legitimate
reasons. One would not want to foreclose them from asking the agency to reconsider the guidance;
and there would be theoretical and practical objections to a regime in which those persons were
eligible to make such a request while persons who did participate were not.194
In any event, one should not assume that the only way to respond to the concern about
duplicative proceedings is to bar stakeholders from taking issue at all with the interpretive rule that
had previously been adopted after an opportunity for public input. A more modest response would
be to say that, when a private person asks an agency to reexamine an interpretive rule, the agency
may consult, rely on, and cite to the rule insofar as the analysis in it is responsive to the request.
If the challenger’s arguments are the same as the ones raised during the prior public engagement,
the answers that the agency reached at that time could simply be repeated.
Judge Williams made an equivalent point about an agency’s use of policy statements in
Bechtel v. FCC:195 “Although the agency must respond to challenges and be ready to consider ‘the
underlying validity of the policy itself,’ it need not repeat itself incessantly. When a party attacks
a policy on grounds that the agency already has dispatched in prior proceedings, the agency can
simply refer to those proceedings if their reasoning remains applicable and adequately refutes the
challenge.” 196 Much other case law on policy statements has proceeded on the same
assumption.197 Insofar as an agency treats its interpretive rules as susceptible of being open to
reconsideration, it should be able to use its past explications of the reasoning behind the
interpretation in precisely the same manner.
The Conference stated in Recommendation 2017-5 that an agency should consider
accepting pre-adoption or post-adoption input from interested persons “with or without
response.”198 The foregoing discussion is not intended to cast doubt on the recommendation’s
implication that an agency should feel free not to respond to comments on guidance. Nevertheless,
the Conference may wish, in its recommendation stemming from this project, to point out that
194

Similar conundrums have arisen in the context of issue exhaustion in rulemaking. See Ronald M. Levin, Making
Sense of Issue Exhaustion in Rulemaking, 70 ADMIN. L. REV. 177, 202 (2018).
195

10 F.3d 875 (D.C. Cir. 1993).

196

Id. at 878 (citations omitted).

197

See Levin, Guidance Exemption, supra note 9, at 297-301.

198

Recommendation 2017-5, ¶¶ 9, 10.

32

writing responses can offer potential efficiency advantages to agencies in terms of memorializing
analysis on which it can rely in subsequent challenges, whether those challenges occur in
administrative or judicial proceedings.

B. Binding Effect
Recommendation 2017-5 provides that an agency should not use a policy statement to
create a standard binding on the public; to the contrary, it should afford members of the public a
“fair opportunity” to seek modification or rescission of the statement. For purposes of this report,
a key set of issues concerns whether these principles should apply to interpretive rules, and also
what measures, if any, the agencies should consider taking in order to make this “fair opportunity”
more of a practical reality. As we will discuss, our view is that the Conference should say clearly
that an agency should not treat interpretive rules as binding on members of the public; but there is
room for debate about the extent to which agencies should be expected to strive to ameliorate the
“practical binding effects” of such rules.
As explained in Part II, agency counsel expressed a variety of views on the issue of
interpretive rules’ internally binding effect. Some would allow for deviation from the terms of an
interpretive rule or an opportunity for private parties to contest it. One official from an agency
that issues relatively few interpretive rules said that the agency would not depart from the rule so
long as it remained in effect, though it would entertain legal and factual challenges to the rule that
might lead to its amendment or rescission. Still other agencies spoke of interpretive rules in terms
of binding effects on staff rather than on the agency as a whole. This diversity of views mirrors
the results that Parrillo reported on the basis of his interviews with agency officials.199 In any
event, we will attempt in the following discussion to clarify some of the issues involved.
1. The question of intrinsically binding effect
A threshold question is whether agencies should properly treat interpretive rules as binding
in the first place. As just stated, we think not.
In our view, the appropriate guidepost for this issue is the postulate to which we drew
attention at the beginning of Part III: what the Supreme Court recently called “the longstanding
recognition that interpretive rules do not have the force and effect of law.”200 This proposition
suggests to us that an agency’s uses of an interpretive rule should be subject to roughly the same
principle that Recommendation 2017-5 articulated with respect to policy statements. The
recommendation said that an agency should not use a policy statement “as a standard with which
noncompliance may form an independent basis for action in matters that determine the rights and
obligations of any member of the public.” If that principle were applied to interpretive rules, the
result would be that when private persons come forward with reasons as to why an interpretive
199

Parrillo, supra note 3, at 23-25 n.36.

200

Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1208 (2015) (citing Chrysler Corp v. Brown, 441 U.S. 281,
302 n. 31 (1979), and the Attorney General's Manual on the APA).

33

rule, or part of it, should be rethought or modified, the agency should not respond that the
interpretive rule is determinative. Rather, it should provide a “fair opportunity” for those persons
to get their views considered by the agency. (As we indicated in the preceding section, an agency
should have some latitude to determine the occasions on which such an opportunity may be
exercised. Other factors that could contribute to defining the scope of the “fair opportunity” to
question an interpretive rule are discussed below in Part IV.B.4.)
As we discussed in Part III, some judicial case law sources can be read to suggest, in
various contexts, that interpretive rules may be binding, but these sources are not necessarily
persuasive in their own right and, in any event, do not shed much light on the distinct question of
what good practice in this area should be. The Conference has, of course, made recommendations
in this area that go well beyond prevailing legal requirements. Recommendation 2017-5 itself did
this to some extent. Another notable example is Recommendation 76-5, which, as has been
mentioned, urged agencies to allow notice and comment voluntarily when they issue interpretive
rules and policy statements with substantial impact.201
There may be a temptation to argue that an agency need not allow any opportunity for
affected persons to contest an interpretive rule at the agency level, because the person could contest
it during judicial review instead. We have already discussed some of the legal factors that could
make this alternative unsatisfactory in some contexts from a litigant’s point of view, including
uncertainties about obtaining preenforcement review of the rule, as well as the deference that the
court may give to the agency in such an appeal.
But, more fundamentally, this argument would be out of synch with the basic thrust of
Recommendations 92-2 and 2017-5. The concept of “practical binding effect” that underlay those
recommendations rested on the premise that not everyone affected by the administrative process
can realistically be expected to muster the resources and fortitude to resort to a judicial remedy.
The recommendations took account of that reality by emphasizing that agencies’ creation and use
of policy statements should be accompanied by a regard for fairness within the administrative
process. The present project offers ACUS an opportunity to extend that thinking a few steps
further, by applying the same basic approach to interpretive rules.
As we discuss below, the scope of the “fair opportunity” to contest an interpretive rule
should be determined in light of important countervailing factors such as the agency’s
implementation needs and the desirability of respecting reliance interests. Agencies should have
latitude to strike a balance among these competing interests. For the moment, however, we are
considering only the issue of whether good practice requires giving interested persons at least some
opportunity to contest an interpretive rule with which they may disagree.
2. Practical binding effects
Whether or not agencies have the legal authority to treat their interpretive rules as
categorically binding, our interviews made clear that, in practice, many agencies do entertain
submissions in which affected persons seek to persuade them to alter or revoke such rules. We
201

ACUS Recommendation 76-5, supra note 188.

34

now consider questions as to whether these agencies make these opportunities as well known and
easy to access as they should.
These questions correspond directly to some of the very issues that Recommendation 20175 explored in considerable depth. That recommendation did not probe very far into the issues that
we addressed in the preceding section, because its scope was limited to policy statements; it is
universally understood that such statements are not supposed to be binding. Rather, the
recommendation focused on a concept that Recommendation 92-2 called “practical binding
effect.” The 2017 recommendation used different terminology, noting that various pressures may
“tend to give at least some policy statements a quasi-binding character in fact regardless of their
legal status.”202 Thus, it “supplement[ed] Recommendation 92-2 by addressing . . . reasons why
members of the public may feel bound by what they perceive as coercive guidance,”203 even where
the agency did not intend that consequence.
The present project gives the Conference an occasion to come to terms with the fact that
both interpretive rules and policy statements can implicate the de facto coercive consequences that
Recommendation 2017-5 seeks to ameliorate. Several relevant considerations can be gleaned from
that recommendation itself.
As discussed above, the earlier recommendation discussed “reasons why members of the
public may feel bound by what they perceive as coercive guidance,” even where the agency did
not intend that result. This may occur because regulated parties feel that the costs of
noncompliance with the guidance document would be too high – e.g., because they want to
maintain the agency’s good will or cannot afford to risk incurring litigation costs and possible
sanctions if they were to resist. On the other hand, the agency’s leniency toward regulated parties,
or its encouragement to them to take steps that may exceed those required by statute or legislative
rule, may cause indirect harm to other interests. In addition, the agency might decline to show
flexibility toward one party so that it can maintain consistency with the way it has treated similarly
situated parties.
These pressures, and others discussed in the recommendation, do not depend on whether
the subject matter of the guidance is more akin to “law” than “policy” or vice versa. There would
seem to be no reason to doubt that, in both the interpretive rule and policy statement contexts,
affected persons have significant interests in measures that agencies might take to ameliorate these
pressures. These findings in the recommendation were based on Parrillo’s voluminous report,
which supports essentially the same conclusion. The report’s discussion of coercive factors was
directed at “guidance,” not at policy statements alone. Parrillo took no position on the normative
question of whether interpretive rules should be nonbinding or not, but he explained that his
descriptive account of the de facto consequences of guidance “covers interpretive rules insofar as
people believe or assume . . . that interpretive rules are supposed to be nonbinding.”204

202

Recommendation 2017-5, 82 Fed. Reg. at 61,735.

203

Id.

204

Parrillo, supra note 3, at 25.

35

In practice, members of the public who agree with an interpretation or see no reason to
question it will presumably comply with the rule and assume they are following the law. But those
other members of the public who disagree with the interpretation, or at least entertain serious
doubts about it, may nevertheless experience significant de facto pressure to comply with it or bear
costs stemming from it, for precisely the same reasons that Recommendation 2017-5 identified in
relation to policy statements – the “practical binding effect” concept that the Conference has
explicated in its two recommendations on that theme.
3. Disclaimers and other ameliorative measures
It is one thing to recognize that these pressures exist, and another to decide what kinds of
efforts, if any, agencies should take to ameliorate them. Paragraph 4 of Recommendation 2017-5
urges that “[a] policy statement should prominently state that it is not binding on members of the
public and explain that a member of the public may take a lawful approach different from the one
set forth in the policy statement or request that the agency take such lawful approach.” In this
section we will sketch out several alternative perspectives on whether, and how far, this advice can
appropriately be transferred to the interpretive rules context.
For the moment we will put aside the latter part of the quoted sentence and focus on the
first part, i.e., the recommendation that the policy statement should prominently state that it is not
binding on members of the public. A number of agency representatives have expressed
reservations about the wisdom of applying a similar expectation to interpretive rules, and these
reservations deserve consideration.
We argued above that, in principle, there is no contradiction between an agency’s saying
that a statute or regulation, as the agency construes it, imposes a mandatory obligation, while also
saying that a person who disagrees with that reading should be permitted to argue, in an appropriate
agency forum, that the agency misconstrued the statute.205 But it is not self-evident that agencies
can clearly and effectively convey that meaning to the public in every regulatory context. One can
imagine a potential for misunderstanding or confusion. The fact that mandatory language is
considered allowable in interpretive rules may compound the potential for mixed messages. The
Conference should, therefore, consider acknowledging that, under such circumstances, an agency
should not necessarily be expected to recite in the interpretive rule itself that members of the public
are free to dispute it.
During our interviews, we learned about one type of situation that appears to raise this
question with clarity. Agencies sometimes publish “practice guides” that explain basic,
uncontroversial legal principles regarding the programs they administer. Such pronouncements
would presumably fall within the definition of interpretive rules, but they may be essentially
educational in nature. For example, an agency might disseminate a brochure or maintain a website
on which it publishes informational pages for the guidance of members of the general public. The
document may recite legal principles that experienced practitioners in the area regard as entirely
205

See supra text following note 144.

36

uncontroversial.206 In such a pronouncement, a statement that outlines steps that readers might
take in order to ask the agency to reconsider or rescind its interpretations might look superfluous
if not incongruous.207
Against this background, we can identify at least four approaches to the disclaimer issue
that the recommendation might invite agencies to consider, bearing in mind that different agencies
might legitimately make different choices among them:
First, an agency might simply adhere in an interpretive rule context to an approach closely
modeled on ¶ 4 of Recommendation 2017-5. It may be that in some regulatory regimes the
challenge of avoiding mixed messages are not especially great. The FDA’s procedural regulation
on Good Guidance Practices might be a model. It requires that each guidance must “[p]rominently
display a statement of the document’s nonbinding effect,”208 and this requirement applies to
interpretive and policy guidance alike.209 Other agencies may also find such an approach to be
congenial, depending on their resources and experiences. It avoids the need to classify a given
guidance document as either interpretive or policy.
Second, the agency might decide to follow the same approach except for interpretive rules
that it judges will be noncontroversial. Under these circumstances, one could argue, there is no
actual de facto coercive effect. Moreover, a proviso stating that the agency will make available a
fair opportunity to contest a noncontroversial interpretation may invite confusion. The decision
about whether a given interpretation would be noncontroversial would be a judgment call, but this
criterion may not be unmanageable. It could be compared with the determination that the
Conference has recommended that agencies make when deciding that an anticipated regulation
may be issued without rulemaking procedure because notice and comment would be
“unnecessary.”210
Third, the recommendation might provide, in a more open-ended manner, that the agency
may omit the § 4 disavowal of binding effect in a particular guidance document (or all documents
206

One interviewee from the staff of an independent commission stated that his agency does put drafts of its practice
guides out for notice and comment. Agency 6. Presumably, however, the purpose of the invitation is to elicit editorial
improvements, not substantive debate.
207
Levin’s article observed that guidance documents that expound completely uncontroversial legal interpretations do
not raise significant analytical problems under the APA’s interpretive rule exemption, because they would be exempt
from rulemaking obligations anyway on the basis that notice and comment would be “unnecessary” (assuming that
the agency had made the proper “good cause” finding). Levin, Guidance Exemption, supra note 9, at 329 (citing 5
U.S.C. § 553(b)(B)). Outside of a litigation context, however, a best-practices recommendation on interpretive rules
must take account of the special questions they raise.
208

21 C.F.R. § 10.115(i)(1)(4) (2018).

209

Id. § 10.115(b). Note that the regulation provides that “Level 2” guidance documents, which “set forth existing
practices or minor changes in interpretation or policy,” § 10.115(c)(2), may be promulgated using streamlined
promulgation procedures, § 10.115(g)(4); but Level 2 guidance is not exempted from the disclaimer obligation
discussed in the accompanying text.
210

5 U.S.C. § 553(b)(B) (2012). The Conference has recommended that agencies use direct final rulemaking in such
situations. ACUS Recommendation 95-4, Procedures for Noncontroversial and Expedited Rulemaking, 60 Fed. Reg.
43,110 (Aug. 18, 1995).

37

in a specified class) if it concludes that inclusion of such a disclaimer would lead to significant
confusion. Or, as a fourth option (at the opposite extreme from the first), the recommendation
could simply dispense with the disclaimer expectation altogether where interpretive rules are
concerned.
It should be clearly recognized that an option like either the third or fourth approach would
entail a tradeoff of values, in that it would afford less protection against inadvertent coercive effects
of the rule than the other approaches mentioned. We think the merits of such a tradeoff are worthy
of consideration. To clarify, however, we do not mean to endorse a departure from the underlying
proposition that agencies should provide a “fair opportunity” to request reconsideration of an
interpretive rule under appropriate circumstances. Rather, this discussion is intended to speak to
steps that an agency might or might not take to ensure effective access to such an opportunity. Or
perhaps the issue could be better described as an aspect of the task of defining what opportunity is
“fair” in that program’s context.
The recommendation might suggest that if the agency avails itself of either of these latter
two options, it should at least issue a widely available procedural regulation that spells out
generically how a person may seek reconsideration of the interpretive rule. However, that
prescription might not be right for every agency. One official from a small agency said that,
because that agency is not multitiered, disagreements with an interpretive rule could be raised
informally.211 This comment suggests that the ultimate recommendation should not be overly
prescriptive as to details.
4. Limiting factors
The similarities between interpretive rules and policy statements include not only the
general principle that an affected person should have a fair opportunity to take issue with a
guidance document, but also certain factors that serve to define the scope of, or delimit, that
principle. Several potential limiting factors come to mind.
Practicability. One was identified in Recommendation 2017-5 in connection with
“additional” measures to avoid binding the public: “considerations of practicability and resource
limitations.”212 One of our interviewees observed that their agency would provide much more
extensive opportunity for public engagement as provided for by 2017-5 if they had “munificent
resources.” But in reality,
[w]e do the best we can with the resources we have to get it right . . . [W]e have the
resources that Congress has chosen to give us, and we have the time that Congress and
circumstances have given us. We try to give people timely answers consistent with their
business needs. So it is important as always to recognize that practical reality creates limits
as to what you can achieve.213

211

Agency 6.

212

Recommendation 2017-5, ¶ 7.

213

Agency 10.

38

A particular reason to be concerned about overloading the procedural expectations
associated with the development and implementation of guidance at the administrative level is the
possibility that excessive burdens might deter agencies from issuing guidance in the first place.
Recommendation 2017-5 recognizes that risk indirectly when it discusses at length some of the
ways in which policy statements are “important instruments of administration across numerous
agencies, and are of great value to agencies and the public alike.”214
Consistency in implementation. Second, a related governmental interest that is in tension
with the aspiration to facilitate interested persons’ ability to seek modification or rescission of
guidance (whether interpretive or policy-laden) is the agency’s objective of maintaining effective
control over administration.215 Paragraph 3 of Recommendation 2017-5 remarked in this
connection that, “[a]lthough a policy statement should not bind an agency as a whole, it is
sometimes appropriate for an agency, as an internal management matter, . . . to direct some of its
employees to act in conformity with a policy statement.” Justifications for such control over
employees can be framed not only in terms of managerial efficiency, but also as a basic part of the
agency head’s responsibility to carry out her statutory mandate. More particularly, it can promote
uniformity of interpretation among the numerous officials who implement a nationwide
program.216
The above acknowledgement in Recommendation 2017-5 was qualified with the caveat
that “the agency should ensure that this does not interfere with the fair opportunity called for
[elsewhere in the recommendation].” As phrased, ¶ 3 could be read to say that the “fair
opportunity” objective should be determined in isolation from any consideration of the agency’s
managerial goals. However, in line with the reasoning suggested just above, an alternative way of
considering this tension would be to treat the agency’s interest in effective administration as one

214

One of the benefits mentioned was that policy statements can “promot[e] compliance with the law,” a goal that
arguably is served even more directly by interpretive rules.
215
There is an extensive law review literature on the analogous problem of reconciling this interest with the goal of
promoting compliance with APA rulemaking procedure. See, e.g., Gillian E. Metzger & Kevin M. Stack, Internal
Administrative Law, 115 MICH. L. REV. 1239 (2017); Peter L. Strauss, The Rulemaking Continuum, 41 DUKE L.J.
1463, 1484-85 (1992); Richard M. Thomas, Prosecutorial Discretion and Agency Self- Regulation: CNI v. Young
and the Aflatoxin Dance, 44 ADMIN. L. REV. 131 (1992).
216

For some, the analysis here may be reminiscent of the claim in Skidmore v. Swift & Co., 323 U.S. 134 (1944), that
an administrator’s statutory interpretation is “entitled to respect,” in part because it is rendered “in pursuance of official
duty.” Id. at 139-40. In that context, the Court was referring to the “respect” that reviewing courts should accord to
such interpretations during judicial review, but the same general idea applies internally: an agency head’s
interpretations, rendered “in pursuit of official duty,” are “entitled to respect” by subordinates. The issuing official
can only carry out her statutory duties if she can communicate to and instruct other officials about her interpretation
of the Act. Extending the comparison, if “[g]ood administration of the Act and good judicial administration alike
require that the standards of public enforcement and those for determining private rights shall be at variance only
where justified by very good reasons,” id. at 140, one might also say that “good administration of the Act” justifies
efforts to discourage “variance” in the “standards of public enforcement” applied within the agency itself. For
discussion of the Skidmore comparison, see Emerson, supra note 19, at 2147-50.

39

factor bearing on the “fairness” of the opportunities that the agency does offer when an interested
person seeks reconsideration or modification of a policy statement or interpretive rule.217
In our interviewing, one agency representative articulated this governmental interest
forcefully:
The interpretive rules by regulation are binding on agency adjudicators. From our
perspective, with everything the agency issues, there is an expectation the employees will
follow it. Appeals counsel will remand if they don’t comply. . . . The agency has a strong
institutional interest in people being treated fairly and being treated equally . . . . The agency
has a strong institutional interest in putting out instructions that apply to everybody. Policy
compliance [should be] as uniform as possible.218
(This official also told us that, in principle, affected persons do have a right to request
reconsideration of an interpretive rule at the highest level of review, although for structural reasons
this option is almost never pursued. The agency does field and sometimes respond to critiques of
the interpretive rules at public forums and the like, outside the setting of litigated cases.)
Stability and reliance. Agencies are also permitted, and at times expected, to take account
of the public interest in preserving stability and respecting reliance interests. These factors tend
to detract from private persons’ opportunity to question the substance of a guidance document, but
they do so in a different fashion from the factors just discussed. That is, they do not tend to prevent
an agency from considering the private person’s arguments against a guidance document, but they
make those arguments somewhat less likely to prevail. In the context of formally adjudicated
precedents, the Supreme Court has recognized this social interest. One element of abuse of
discretion doctrine, the Court has said, is a “presumption” favoring adherence to the status quo;
the agency may change its direction but must explain its decision to do so.219 The OMB’s Good
Guidance Practices bulletin bolsters this constraint by providing that “agency employees should
not depart from significant agency guidance documents without appropriate justification and

217

For general discussion of this problem, see Levin, Guidance Exemption, supra note 9, at 306-08. Compare how
these competing objectives were addressed in Recommendation 92-2. The latter recommendation emphasized that it
did not “preclude an agency from making a policy statement which is authoritative for staff officials in the interest of
administrative uniformity or policy coherence. Indeed, agencies are encouraged to provide guidance to staff in the
form of manuals and other management directives as a means to regularize employee action that directly affects the
public.” The recommendation then added, however, that agencies “should advise staff that while instructive to them,
such policy guidance does not constitute a standard where noncompliance may form an independent basis for action
in matters that determine the rights and obligations of any person outside the agency.” ACUS Recommendation 922, ¶ III, supra note 10, at 30,104.
218

Agency 5.

219

Atchison, T. & S.F. Ry. v. Wichita Bd. of Trade, 412 U.S. 800, 807-08 (1973) (plurality opinion) (“A settled course
of behavior embodies the agency's informed judgment that, by pursuing that course, it will carry out the policies
committed to it by Congress. There is, then, at least a presumption that those policies will be carried out best if the
settled rule is adhered to. From this presumption flows the agency's duty to explain its departure from prior norms.”)
(relying on Secretary of Agric. v. United States, 347 U.S. 645, 653 (1954)).

40

supervisory concurrence.” (The preamble to Recommendation 2017-5 quoted this language in a
footnote,220 although it arguably did not squarely endorse that expectation.)
Finally, an agency might also have legitimate reservations about revising or revoking a
guidance document because of its desire to protect legitimate reliance interests. As staff at an
executive agency told us, “Once we issue a final [guidance], you can rely on it. It creates a safe
harbor; if you follow the guidance, you are in compliance.”221 Such accommodation of reasonable
reliance interests is often encouraged or even compelled by principles of administrative law,
stemming from due process as well as abuse of discretion doctrine.222
This is not to say that an interpretive rule that might induce members of the public to rely
on it thereby becomes “binding” in the sense we use that term in this report. That characterization
would be difficult to reconcile with the postulate that an interpretive rule lacks the force of law. It
would also unnecessarily impede agencies from revising their interpretations, even where they
reasonably explain their decision. In addition, it might give impetus to what we regard as a
regrettable tendency among some courts to hold that a rule that creates or purportedly creates a
“safe harbor” must be issued through notice-and-comment procedure.223
But, even though an interpretive rule cannot be categorically binding, reliance expectations
can often be protected to a considerable extent by the due process and abuse of discretion principles
mentioned above. Moreover, agencies themselves are often careful to maintain their reputations
for living up to their word, as part of sustaining their continuing relationships with stakeholders.
These combined assurances are often enough to give regulated entities confidence that they can
make business planning decisions on the basis of agencies’ interpretive rules or other
representations. Entities who feel the need for even more definitive guarantees from an agency
can ask it to issue a declaratory order.224

220

Recommendation 2017-5 at n.8.

221

Agency 2.

222

See, e.g., Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016); Perez v. Mortgage Bankers Ass’n, 135
S. Ct. 1199, 1203 (2015) (citing FCC v. Fox Television Stations, Inc. (Fox I), 556 U.S. 502, 515 (2009)); Smiley v.
Citibank, 517 U.S. 735, 742 (1996) (dictum); Emerson, supra note 19, at 2201-07.
223

See, e.g., Texas v. EEOC, 827 F. 3d 372 (5th Cir. 2016), opinion withdrawn, 838 F.3d 511 (5th Cir. 2016); Cmty.
Nutrition Inst. v. Young, 818 F.2d 943 (D.C. Cir. 1987). These decisions have elicited strong criticism, in part because
they may tend to deter agencies from regularizing their enforcement policies. See, e.g., Thomas, supra note 215, at
152, 155 (criticizing Community Nutrition); Emerson, supra note 19, at 2165-72 (criticizing Texas).
224

See ACUS Recommendation 2015-3, Declaratory Orders, 80 Fed. Reg. 78,163 (Dec. 16, 2015); Emily S. Bremer,
The Agency Declaratory Judgment, 78 OHIO ST. L.J. 1170 (2017) (consultant’s report for that recommendation).

41

C. Invited Flexibility
Having spent much of this report highlighting similarities between interpretive rules and
policy statements, we will conclude this discussion by addressing one relevant area in which these
two types of guidance can play out very differently, at least some of the time.
An important function of policy statements is to open up a dialogue with regulated entities
about alternative modes of compliance. The agency offers one method of compliance in the policy
statement but invites members of the public to suggest other lawful approaches. The result is often
an informal negotiation that leads to creative solutions that the agency did not foresee when it
promulgated the guidance.
Recommendation 2017-5 recognizes the importance of this administrative tool by stating
in ¶ 2 that “[a]n agency should afford members of the public a fair opportunity to argue for lawful
approaches other than those put forward by a policy statement.” Moreover, ¶ 4 provides that the
policy statement should affirmatively state that members of the public may follow such a different
approach or request the agency to follow one. In addition, ¶¶ 7 and 8 contain extended discussion
of managerial measures that agencies can take to promote or facilitate dialogue with private
interests about flexible alternative approaches.
Some agency counsel have argued that interpretive rules will normally not lend themselves
well to such invited flexibility. This argument has force, at least some of the time. However, it
does not fully capture real-world circumstances in which the line between interpretive rules and
policy statements can be indistinct.
An interpretive rule might characterize the law in such a manner as to be essentially nonnegotiable. If the rule asserts that a statute or regulation flatly requires something, this statement
means by definition that a failure to comply with the requirement is not a “lawful approach.”
Conversely, if the rule asserts that the statute or regulation forbids something, a request to be able
to do it anyway would amount to a negation of the rule, not a “flexible approach” to it. Thus, in
these contexts, controversies about an interpretive rule tend almost inexorably to turn into efforts
to elicit rescission or modification of those rules. Of course, affected persons should nevertheless
be able to seek such relief; earlier sections of this report would be relevant to the Conference’s
recommendations as to the terms on which such requests should be considered.
Another possibility to consider is that an interpretive rule might on its face purport to forbid
certain conduct, but an affected person could ask the agency to allow it anyway through a waiver
or an exercise of prosecutorial discretion. Such exercises of administrative leniency can play an
important role in the administrative process, but they would not necessarily be regarded as the kind
of flexibility that Recommendation 2017-5 addresses. Moreover, this sort of administrative relief
has ramifications that were not within the scope of the research conducted for the present project.
They were, however, the subject of a contemporaneous Conference action, Recommendation

42

2017-7.225 If the Conference wishes to refer to devices such as waiver and prosecutorial discretion
as being at least functionally comparable to the “alternative flexible approaches” addressed by
Recommendation 2017-5, it could cover much of that terrain by simply citing to Recommendation
2017-7.
Other interpretive rules, however, may be more conducive to “flexible approaches.” The
rule might, for example, speak at a general level, leaving space for informal adjustments and
negotiation between the agency and its stakeholders about how the rule should be applied.
Alternatively, the rule might speak in specific terms but not purport to be exhaustive. It might say,
for example, that certain types of conduct are authorized by law, leaving open the possibility that
other conduct could also be lawful. In either of these situations, the agency may contemplate that
affected persons could propose elaborations on the rule and could even invite such proposals, by
analogy to ¶ 4 of Recommendation 2017-5.
Even if an interpretive rule is exhaustive on its face, the agency may in reality be open to
modifying it,226 especially if the modification would entail only an incremental adjustment in its
coverage rather than wholesale reversal of its basic principle. In this context, a request for
flexibility could potentially be conceived as a form of legal interpretation or as an exercise of
prosecutorial discretion. Even so, such a request may also implicate the policy considerations that
Recommendation 2017-5 discussed in regard to inviting or displaying flexibility in the
implementation of policy statements.
A larger point underlying this discussion is that, as may be seen from the interview
comments summarized in Part II.B. of this report, agencies often implement interpretive rules and
policy statements in similar ways. Indeed, they do not always distinguish between the two, or they
may issue guidance documents that contain both interpretive and policy elements. Parrillo
reported hearing similar comments in his interviews.227 The confluence between the two types of
guidance may be especially apparent when an interpretive rule explicates the meaning of a broadly
worded statutory term such as “discrimination” or “in the public interest.” In such situations,
agencies typically use the language of “interpretation” because the substantive law in their fields
of specialty has developed that way, but the reality may be that such a rule reflects a sort of
common law reasoning that is not easily distinguished from policymaking.
This analysis suggests that, in drafting a recommendation on this issue, the Conference
should take a nuanced approach. Paragraphs 7 and 8 of Recommendation 2017-5 already list
prudential factors that agencies should consider in deciding how far to invest in promoting
flexibility in the implementation of policy statements; the above reasoning suggests that, for
interpretive rules, additional variables should be put forward for the agencies’ consideration.
225
Recommendation 2017-7, Regulatory Waivers and Exemptions, 82 Fed. Reg. 61,728, 61,742 (Dec. 29, 2017); see
Aaron L. Nielson, How Agencies Choose to Enforce the Law: A Preliminary Investigation, 93 NOTRE DAME L. REV.
1517 (2018) (article based on consultant’s report for that recommendation).
226

One of our interviewees referred specifically to this possibility. See supra notes 115-117 and accompanying text.

227

Parrillo, supra note 3, at 23-25 n.36. See also Levin, Guidance Exemption, supra note 9, at 351-53 (citing cases
that have discerned similar overlaps between the interpretive rule and policy statement categories).

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We can suggest a few possible examples, not intended to be definitive. The prior
recommendation suggested in ¶ 7(a) that “when the agency accepts a proposal for a lawful
approach other than that put forward in a policy statement and the approach seems likely to be
applicable to other situations, the agency should disseminate its decision and the reasons for it to
other [interested] persons.” Probably, this suggestion would in many situations be at least as
apposite to interpretive rules as to policy statements, because interpretive rules by their nature
purport to define norms that would apply generally to similarly situated persons.
On the other hand, ¶ 7(b) and 7(c) would seem applicable to some interpretive rules and
not to others. Those paragraphs contemplate that an agency should route requests for flexibility
to a specially designated unit of the agency or to an official who stands at a higher level in the
agency hierarchy than the frontline officials to whom the request might be initially directed. With
respect to interpretive rules that, as a substantive matter, do not seem conducive to the flexibility
approaches contemplated by Recommendation 2017-5, these structural steps may be superfluous.
But other interpretive rules may well be susceptible of such application, particularly where the
potential alternative approaches could be seen as elaborating on the rule rather seeking
modification of it.

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APPENDIX
[As a means of drawing together the foregoing suggestions for a recommendation growing
out of this project, we offer for consideration the following annotated version of Recommendation
2017-5. Language in roman type is the verbatim text of the numbered recommendations in that
2017 document, and the language in italic type explains how we think those provisions should or
should not apply to interpretive rules. This material is offered only for explanatory purposes; we
recognize, of course, that the contents of the Conference’s ultimate recommendation will be
determined by the reactions and judgments of its membership.]

Policy Statements Should Not Bind the Public
1.
An agency should not use a policy statement to create a standard binding on the public,
that is, as a standard with which noncompliance may form an independent basis for action in
matters that determine the rights and obligations of any member of the public.
In principle, the same should be true of an interpretive rule, because such a rule, like other
guidance, lacks the force of law. In an enforcement context, the issue should be whether
or not the opposing litigant complied with the statute or regulation that the rule interprets.
The issue of compliance with the interpretive rule should not, as such, be the basis of
liability.
2.
An agency should afford members of the public a fair opportunity to argue [a] for lawful
approaches other than those put forward by a policy statement or [b] for modification or rescission
of the policy statement.
In our view, clause [b] of this paragraph should be just as applicable to interpretive rules
as to policy statements, with the understanding that the scope of the specified “fair
opportunity” may, as to both kinds of guidance, be defined in light of various legitimate
administrative interests.
Clause [a] would seem to be inapplicable to some interpretive rules. If such a rule purports
to state what approaches are lawful, a disagreement with it may be, in effect, an attack on
the rule itself. Alternatively, a member of the public might persuade the agency that the
rule is mistaken or imprecise; or the agency might agree to grant a waiver of the provision
of law that the rule interprets, but those circumstances might not be directly analogous to
the “lawful approaches” that Recommendation 2017-5 encourages agencies to invite. As
a practical matter, however, sometimes these or other methods of seeking relief from the
application of an interpretive rule would be functionally similar to the “flexibility”
provisions of the recommendation. See related discussion under ¶ 7 below.
3.
Although a policy statement should not bind an agency as a whole, it is sometimes
appropriate for an agency, as an internal agency management matter, and particularly when
guidance is used in connection with regulatory enforcement, to direct some of its employees to act
in conformity with a policy statement. But the agency should ensure that this does not interfere
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with the fair opportunity called for in Recommendation 2. For example, a policy statement could
bind officials at one level of the agency hierarchy, with the caveat that officials at a higher level
can authorize action that varies from the policy statement. Agency review should be available in
cases in which frontline officials fail to follow policy statements in conformity with which they
are properly directed to act.
The substance of this paragraph should apply just as much to interpretive rules as to policy
statements (at least insofar as the cross-reference to Recommendation 2 applies to the “fair
opportunity to argue . . . . for modification or rescission” discussed therein).
Minimum Measures to Avoid Binding the Public
4.
A policy statement should prominently state that it is not binding on members of the public
and explain that a member of the public may take a lawful approach different from the one set
forth in the policy statement or request that the agency take such a lawful approach. The policy
statement should also include the identity and contact information of officials to whom such a
request should be made.
The “lawful approach” language would not always be relevant to interpretive rules.
Whether the remaining language– i.e., a “prominent statement” that the rule is not binding
– should apply to interpretive rules may depend on context. Different agencies might
appropriately address this question in different ways.
5.
A policy statement should not include mandatory language unless the agency is using that
language to describe an existing statutory or regulatory requirement, or the language is addressed
to agency employees and will not interfere with the fair opportunity called for in Recommendation
2.
Interpretive rules typically do describe an existing statutory or regulatory requirement;
thus, mandatory language in such rules is obviously not disfavored.
6.
The agency should instruct all employees engaged in an activity to which a policy
statement pertains to refrain from making any statements suggesting that a policy statement is
binding on the public. Insofar as any employee is directed, as an internal agency management
matter, to act in conformity with a policy statement, that employee should be instructed as to the
difference between such an internal agency management requirement and law that is binding on
the public.
A version of this paragraph should apply to interpretive rules. If anything, training may
be particularly important in order to enable agencies to explain that, although the rule
may contain mandatory language, it does not have the force of law.
Additional Measures to Avoid Binding the Public
7.
In order to avoid using policy statements to bind the public and in order to provide a fair
opportunity for other lawful approaches, an agency should, subject to considerations of
practicability and resource limitations and the priorities described in Recommendation 8, consider
additional measures, including the following:
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For reasons stated in ¶ 2, the provisions in this paragraph, which are designed to
encourage agencies to be flexible in allowing other “lawful approaches” other those
expressed in a policy statement, may not always be relevant to interpretive rules, which by
definition express the agency’s views as to what approaches are lawful. But the distinction
should not be drawn too sharply; some possible applications of the paragraph to
interpretive rules are suggested below.
a.
Promoting the flexible use of policy statements in a manner that still takes due account of
needs for consistency and predictability. In particular, when the agency accepts a proposal for a
lawful approach other than that put forward in a policy statement and the approach seems likely to
be applicable to other situations, the agency should disseminate its decision and the reasons for it
to other persons who might make the argument, to other affected stakeholders, to officials likely
to hear the argument, and to members of the public, subject to existing protections for confidential
business or personal information.
This substance of this subparagraph should apply to interpretive rules.
b.
Assigning the task of considering arguments for approaches other than that in a policy
statement to a component of the agency that is likely to engage in open and productive dialogue
with persons who make such arguments, such as a program office that is accustomed to dealing
cooperatively with regulated parties and regulatory beneficiaries.
Some interpretive rules may not be conducive to being ameliorated through “flexible
approaches” as discussed herein, so that the structural measure contemplated by this
subparagraph could be unnecessary.
c.
In cases where frontline officials are authorized to take an approach different from that in
a policy statement but decline to do so, directing appeals of such a refusal to a higher-level official
who is not the direct superior of those frontline officials.
Same response as to the preceding subparagraph.
d.
Investing in training and monitoring of frontline personnel to ensure that they (i)
understand the difference between legislative rules and policy statements; (ii) treat parties’ ideas
for lawful approaches different from those in a policy statement in an open and welcoming manner;
and (iii) understand that approaches other than that in a policy statement, if undertaken according
to the proper internal agency procedures for approval and justification, are appropriate and will
not have adverse employment consequences for them.
To whatever extent interpretive rules do lend themselves to being administered through
flexible approaches in the sense under discussion, the training and monitoring
contemplated by this subparagraph should be recommended.
e.
Facilitating opportunities for members of the public, including through intermediaries such
as ombudspersons or associations, to propose or support approaches different from those in a
policy statement and to provide feedback to the agency on whether its officials are giving
reasonable consideration to such proposals.
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Again, to whatever extent interpretive rules do lend themselves to being administered
through flexible approaches in the sense under discussion, this subparagraph should also
apply.
Priorities in Deciding When to Invest in Promoting Flexibility
8.
Because measures to promote flexibility (including those listed in Recommendation 7) may
take up agency resources, it will be necessary to set priorities for which policy statements are most
in need of such measures. In deciding when to take such measures the agency should consider the
following, bearing in mind that these considerations will not always point in the same direction:
a.
An agency should assign a higher priority to a policy statement the greater the statement’s
impact is likely to be on the interests of regulated parties, regulatory beneficiaries, and other
interested parties, either because regulated parties have strong incentives to comply with the
statement or because the statement practically reduces the stringency of the regulatory scheme
compared to the status quo.
b.
An agency should assign a lower priority to promoting flexibility in the use of a policy
statement insofar as the statement’s value to the agency and to stakeholders lies primarily in the
fact that it is helpful to have consistency independent of the statement’s substantive content.
This paragraph seeks to calibrate the uses of the techniques set forth in ¶ 7, so it is relevant
when, but only when, those techniques are potentially implicated..
Public Participation in Adoption or Modification of Policy Statements
9.
When an agency is contemplating adopting or modifying a policy statement, it should
consider whether to solicit public participation, and, if so, what kind, before adopting the
statement. Options for public participation include outreach to selected stakeholder
representatives, stakeholder meetings or webinars, advisory committee proceedings, and invitation
for written input from the public with or without a response. In deciding how to proceed, the
agency should consider:
a.
Existing agency procedures for the adoption of policy statements, including any procedures
adopted in response to the Office of Management and Budget’s Final Bulletin for Agency Good
Guidance Practices (2007).
b.

The factors listed in Recommendation 8.

c.
The likely increase in useful information available to the agency from broadening
participation, keeping in mind that non-regulated parties (regulatory beneficiaries and other
interested parties) may offer different information than regulated parties and that non-regulated
parties will often have no opportunity to provide input regarding policy statements other than at
the time of adoption.
d.
The likely increase in policy acceptance from broadening participation, keeping in mind
that non-regulated parties will often have no opportunity to provide input regarding policy

48

statements other than at the time of adoption, and that policy acceptance may be less likely if the
agency is not responsive to stakeholder input.
e.
Whether the agency is likely to learn more useful information by having a specific agency
proposal as a focal point for discussion, or instead having a more free- ranging and less formal
discussion.
f.
The practicability of broader forms of participation, including invitation for written input
from the public, keeping in mind that broader participation may slow the adoption of policy
statements and may diminish resources for other agency tasks, including the provision of policy
statements on other matters.
The substance of this recommendation should apply fully to interpretive rules.
10.
If an agency does not provide for public participation before adopting or modifying a policy
statement, it should consider offering an opportunity for public participation after adoption. As
with Recommendation 9, options for public participation include outreach to selected stakeholder
representatives, stakeholder meetings or webinars, advisory committee proceedings, and invitation
for written input from the public with or without a response.
The substance of this recommendation should apply fully to interpretive rules.
11.
An agency may make decisions about the appropriate level of public participation
document-by-document or by assigning certain procedures for public participation to general
categories of documents. If an agency opts for the latter, it should consider whether resource
limitations may cause some documents, if subject to pre-adoption procedures for public
participation, to remain in draft for substantial periods of time. If that is the case, agencies should
either (a) make clear to stakeholders which draft policy statements, if any, should be understood
to reflect current agency thinking; or (b) provide in each draft policy statement that, at a certain
time after publication, the document will automatically either be adopted or withdrawn.
The substance of this recommendation should apply fully to interpretive rules.
12.
All written policy statements affecting the interests of regulated parties, regulatory
beneficiaries, or other interested parties should be promptly made available electronically and
indexed, in a manner in which they may readily be found. Written policy statements should also
indicate the nature of the reliance that may be placed on them and the opportunities for
reconsideration or modification of them or the taking of different approaches.
The substance of this recommendation should apply fully to interpretive rules.

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