Exemptions
-rules relating to military or foreign affairs and “public property, loans, grants, benefits, or contracts)
-Interpretative rules, general standards of policy, or rules of organization or procedure
-Am. Mining Congress v. Mine Safety & Health Admin. (D.C. Cir. 1993)
-Notice and comment is required if
-in the absence of the rule there wouldn’t be an adequate basis for enforcement action (non self-executing)
-the agency has published the rule in CFR
-the agency has explicitly invoked its general legislative authority
-the rule amends a prior legislative rule
-policy letters that x-ray readings qualify as diagnoses are interpretative rules so no notice and comment required
-Compare U.S. v. Nova Scotia Food Products Corp. (2d Cir. 1977) : Notice and comment required to add whitefish to FDA regulations
-unlike retreaded tires case, this was decided on procedural grounds – procedure was inadequate b/c didn’t indicate what data it relied on; therefore regs are arbitrary
-distinguish from Fla. E. Coast (RR) case because enforcement proceeding, not pre-enforcement – here posture focuses on rulemaking process
-constant source of litigation whether § 553 should have been used
-hypo: SSA issues instructional memo that says alcoholism is medical condition but need evidence of organic damage
-close case b/c essentially amending eligibility statute
-See Hector (7th Cir. 1996) – determination that regulation requiring structural strength of fences containing wild animals implies fences must be 8 feet tall was rule/legislative so need notice and comment
-Compare Shalala (U.S. 1995) – determination that regulation stipulating use of “standardized . . . accounting” did not require use of GAAP was interpretation
-often intent to use as a rule is clear for enforcement (e.g., FTC requires octane level posting on pumps and punishes violations automatically)
-when the agency finds “good cause” and documents that notice and public procedure is “impracticable, unnecessary, or contrary to the public interest”
-must invoke at issuance not when challenged