Exceptions to Rulemaking Requirements: good cause exemption, policy statements, interpretive rules

Interpretive rules, Policy Statement, and Good Cause,

a. statements "issued by an agency to advise the public of the agency's construction of the statutes and rules which it administers."

i. Agency can interpret a statute that it administers (an organic statute) through an issuance of legislative or nonlegislative interpretive rules (nonlegislative interpretive can be issued much more quickly because they're not legislative).

EXAMPLE: EPA wants to adopt interpretive rule that says we interpret "water of US" as being applicable to filling of wetlands/includes wetlands that house migratory birds.

a. If EPA's intent behind issuing rule is just to announce what statutory language means & providing guidance to regulated parties who own wetlands, make argument that it's interpretive rule & exempt from notice & comment. Likely Non legislative/interpretive rule!

b. If EPA adopts rule as interpretive but is going around telling people here's your guidance on what waters of US means, this probably has some sort of effect on what regulated parties do. If EPA tries to cite someone/try to enforce something, looks more like a legislative rule

legally binding vs. whether rule is truly interpretive & thus not subject to notice & comment

TEST:
1. Whether in the absence of the rule there would still be an adequate basis for an enforcement action;
a. Yes → if rule is not basis for action, then likely interpretive.
2. Interpretive policy is actually interpreting something, not actually making policy;
3. If person who signed had the authority to sign something with effect of law.

i. Looks a lot like interpretive rules--typically agencies will claim both exceptions.

i. Advising public of something that's going to happen; or when agency wants to indicate how it intends to act under certain circumstances in adjudications.

1. EX: Coast Guard. To aid officers engaged in functions, created a safety manual that gives what sort of penalties might exist for pollution incidents.
a. → Marine manual = good example of general statement of policy. Not binding, publicly available, providing guidance for anyone who wants to read it/anyone who cares.

ii. Generally look to same factors as interpretive rules to determine if legislative rule v. nonlegislative rule.
1. Who signed it? Written in memo?

Agency is exempt from Notice and Comment requirements when the Agency has good cause not to use N&C bc the rule is unnecessary, impracticable, to the public interest

Unnecessary: minor or technical and the public doesn't care

Impracticable: a situation in which the due and required execution of agency functions would be unavoidably prevented by its undertaking public rulemaking
or

contrary to the public interest: (can be lack of public interest)

***Agency must invoke this exception at the time it promulgates the rule.