Legislative Rule or Interpretive Guidance?

A legislative rule is a rule that adds to or changes legal requirements. A LR affects an actual change in existing law or policy, and it creates new rights or duties. A LR has actual legal effect in subsequent agency and judicial proceedings. While rules have the same legal effect as a statute passed by Congress (i.e., a rule is law), a statute must give the agency the authority to adopt such rules. At the federal level, rules are published in the federal register for notice and comment then codified in the CFR.

In La, rules are published in the La Register and codified in the LAC.

The term "rule" and "regulation" are used interchangeably and mean the same thing.

Legislative rules, like statutes, have the force of law. The agency can impose criminal and civil penalties for violation of the rules that it has promulgated.

a non-legislative/interpretive rule?
i. A non-legislative rule is a rule that has no legal effect. Rather, it interprets existing legal obligations (interpretative rule) or states the agency's veiew on a matter of policy without creating legal rights or obligations (general statement of policy). Nonlegislative rules must be published in the federal Register. Agencies may not give legal effect to nonlegislative rules. NLRs do not require statutory authorization because they are not law and thus not legally binding.

LRs and NLRs are sometimes difficult to distinguish, such as when OSHA sets a workplace safety standard in a LR but decides to elaborate on its meaning in a NLR designed to inform employers of OSHA's interpretation of the standard.

Guidance documents = Interpretative rule, opinion letter, guidance document, rules of agency procedure

It is merely the agency's opinion of what the law is, and has no legally binding effect. These are rules that have no legal effect on the regulated entities and merely announce what an agency thinks the law is.

Substantial impact and legally binding or force of law

Only explain the law or provide guidance (don't change the law so no legal effect)

Does the "interpretive rule" really have a substantial impact on the regulatory community? If so, then it is a legislative rule & must be adopted through notice & comment.

Does the rule create rights, impose obligations, or effect a change in existing law?

a. Without the rule is there an adequate basis for enforcement action or other agency action to confer benefits or ensure performance of duties? Some statutes directly create an enforceable duty and the agency could enforce the rule without creating rules. Without the rule, can the agency enforce their statutory delegation?
b. Does the rule interpret a legal standard? Does it create higher specificity? Does it use common methods of interpretation? Does it identify how the rule will serve statutory purposes?
c. Is the "interpretive rule" consistent with the rule it is interpreting?
d. Is it inconsistent with a prior interpretive rule?
e. Has the agency contemporaneously said it was issuing an interpretive rule?
f. Is it published in the CFR? Suggests intention to have legal effect.

Exempt from notice and comment; will become a substantive rule (and thereby subject to notice & comment) if the change in procedure has a substantial impact on the regulated parties

Rule that do not have legislative effect and thereby are not required to go through notice & comment

i. Indicate to the regulated community when an agency will take investigative orenforcement action
ii. Indicate how an agency intends to act under certain circumstances in an agency adjudication

The first test only required that a rule have a "substantial impact" on the regulated community, if it did, the Court would remand the rule to the agency with instructions that it had to put the rule through notice and comment before it had the force of law. In addition the Court recognized that the APA abrogated federal common law in regards to administrative law, so the Court could only order additional measures in regards to promulgating a rule if a certain statute or the Constitution provided for it. See Vermont Yankee. If it did not have a substantial impact, it was considered an interpretative rule

i. -IF in the absence of the rule, there would be no basis for agency enforcement;
ii. -whether the rule interprets a legal standard or whether it makes policy;
iii. -whether the rule is consistent with the legislative rule it is interpreting;
iv. -whether the rule is inconsistent with a prior definitive interpretative rule.
v. -whether the agency previously indicated that the rule was an interpretative one;
vi. -whether the person signing the document had authority to bind the agency or make law.

That it is a reasonable interpretation of an existing rule or statute that the agency is acting pursuant to and does not establish new privileges or burdens on the regulated community.

Because rulemaking can be very costly and time consuming. Examples of this are the amount of peanuts that should be used in peanut butter and rates for natural gas suppliers.

(Department of Agriculture: "to protect and contain the animals"...rule provided dangerous animals must be inside fence at least eight feet high): line-drawing on general duty of secure containment is uniquely legislative, not interpretive.

(National Park service: rule provided for additional reasonable conditions and additional time limitations for national park use). The agency cannot grant itself the power to avoid later notice-and-comment rulemaking by adopting a catch-all provision through notice-and-comment rulemaking.

Mine Safety: the agency document must be signed by someone with authority to bind the agency or to make law in order for it to possibly be considered a rule requiring notice and comment.

One of two possibilities: court could say it is a substantively invalid interpretive rule because it does not accurately interpret the legislative rule or a court could say the rule is a procedural invalid for not going through notice and comment, and only if it went through notice and comment could it amend or change the legislative rule with which it is inconsistent.

Substantial time and resources are needed for notice and comment rulemaking...the agency often has neither! Interpretive rules are also retroactive whereas legislative rules are not.

You have to go back through the notice and comment process.

There is reasonably certainty that if they act in conformity with the interpretation the agency has given the rule, they will be OK.

Parties have nothing on which to reasonably rely...they may have already conformed their operations to overruled interpretations. A legislative rule will take substantial time and resources.

Chamber of Commerce dealt with cooperative compliance program which was labeled as a statement of policy. Because OSHA said it would not inspect workplaces as often or thoroughly if regulated parties complied by exceeding certain federal requirements, the "policy" became a binding legal norm, not just mere guidance for the industry. It thus required notice and comment.