The Committee on Judicial Review recently voted to approve a proposed recommendation on agency guidance through interpretive rules.
In 2017, the Assembly approved a recommendation titled Agency Guidance Through Policy Statements. That recommendation advises agencies how to ensure the public has a fair opportunity to argue for other lawful approaches to those laid out in a statement of policy, among other suggestions.
The Administrative Procedure Act exempts statements of policy and interpretive rules from the notice-and-comment requirements of 5 U.S.C. § 553. During its discussion of agency guidance through statements of policy, the Assembly expressed its support for a study of whether the recommendation on policy statements should be extended to interpretive rules. The current project stems from that discussion.
This season’s proposed recommendation on interpretive rules largely treats interpretive rules the same as the previous recommendation treats statements of policy, save for some key distinctions between interpretive rules and statements of policy. As with the recommendation on statements of policy, the proposed recommendation generally recognizes that agencies should give the public a fair opportunity to argue for other lawful approaches than those it has laid out. However, the proposed recommendation also notes that some interpretive rules are not amenable to other lawful approaches; for such rules, the proposed recommendation notes that agencies should give the public the opportunity to argue for rescission, modification, or waiver of such rules and that agencies should make sure people are aware of this opportunity.
As with the recommendation on statements of policy, the proposed recommendation on interpretive rules aims to strike a balance between recognizing that agencies have a legitimate interest in ensuring that their employees adhere to interpretive rules and ensuring that the public has fair opportunity to put forward alternatives to such rules.
Should the Council vote to place this proposed recommendation on the agenda, the full Assembly will discuss and vote on the recommendation at the 71st Plenary Session in June. If approved, ACUS staff will work with agencies to implement the recommendation.