Indiana Law Review


The Interpretive Rule Exemption: A Definitional
Approach to Its Application

I. Introduction

The growth of the federal regulatory establishment and the corre-
sponding increase in federal regulatory action are matters that affect

every citizen. 1 In light of the pervasive effect of these federal regu-

latory actions, the procedures set forth in the Administrative Pro-

cedure Act (APA)2 to guide and to control agency activity are impor-

tant to both the agencies and the public.

One of the most significant provisions of the APA requires fed-
eral agencies, before adopting a rule, to give general notice of and to

offer the public an opportunity to comment on the proposed agency ac-
tion.

3 The notice and comment provision applies to agency rules, which

'Staff of Senate Subcomm. on Regulatory Reform, Report on the
Regulatory Reform Act, S. Rep. No. 284, 97th Cong., 1st Sess. 9-50 (1981) [hereinafter
cited as Senate Report]. The degree of regulatory growth is reflected by the effect of
regulations on our Gross National Product (GNP). In 1965, federal regulations affected

8.2% of the GNP; by 1975, federal regulations affected 23.7% of the GNP. Id. at 9
(citing P. MacAvoy, The Regulated Industries and the Economy 25 (1979)). In addi-
tion, compliance costs with federal regulations are approximately $100 billion a

year — about one-fifth the size of the federal budget. Staff of Joint Economic Comm.,
96th Cong., 2d Sess., Government Regulation: Achieving Social and Economic
Balance, Special Study on Economic Change (Comm. Print 1980).

2
5 U.S.C. §§ 551-559 (1976).

3
Id. Section 553 provides in part:

Rule making

(b) General notice of proposed rule making shall be published in the

Federal Register, unless persons subject thereto are named and either per-
sonally served or otherwise have actual notice thereof in accordance with

law. The notice shall include —
(1) a statement of the time, place, and nature of public rule

making proceedings;

(2) reference to the legal authority under which the rule is pro-

posed; and

(3) either the terms or substance of the proposed rule or a

description of the subjects and issues involved.

Except when notice or hearing is required by statute, this subsection does
not apply —

(A) to interpretative rules, general statements of policy, or

rules of agency organization, procedure, or practice; or

(B) when the agency for good cause finds (and incorporates the
finding and a brief statement of reasons therefor in the rules

issued) that notice and public procedure thereon are imprac-

ticable, unnecessary, or contrary to the public interest.

(c) After notice required by this section, the agency shall give in-

terested persons an opportunity to participate in the rule making through

875



876 INDIANA LAW REVIEW [Vol. 15:875

are defined in the APA as agency statements designed to "implement,
interpret, or prescribe law or policy." 4 In requiring an agency to act

like a legislative body when the agency issues such legislative rules,
Congress intended to protect the interests of the public from the ar-

bitrary exercise of power by agencies.5

Despite the importance of notice and comment proceedings,
Congress recognized that certain agency activities were merely ad-
ministrative and that the impact of such actions was minimal. For
these agency actions, Congress found that the value of imposing an

opportunity for public comment was outweighed by the need for ef-
ficient and effective agency administration.6 Therefore, Congress ex-

empted certain agency actions from the APA notice and comment
requirements 7 and required the agency only to give notice of the

rule in the Federal Register.8

Included in the exemption from notice and comment proceedings

submission of written data, views, or arguments with or without opportunity

for oral presentation. After consideration of the relevant matter presented,

the agency shall incorporate in the rules adopted a concise general statement

of their basis and purpose. When rules are required by statute to be made on
the record after opportunity for an agency hearing, sections 556 and 557 of

this title apply instead of this subsection.

(d) The required publication or service of a substantive rule shall be

made not less than 30 days before its. effective date, except —
(1) a substantive rule which grants or recognizes an exemption

or relieves a restriction;

(2) interpretative rules and statements of policy; or

(3) as otherwise provided by the agency for good cause found

and published with the rule.

(e^ Each agency shall give an interested person the right to petition for

the issuance, amendment, or repeal of a rule.
4
5 U.S.C. § 551(4) (1976) provides in part:

"rule" means the whole or a part of an agency statement of general or par-

ticular applicability and future effect designed to implement, interpret, or

prescribe law or policy or describing the organization, procedure, or practice

requirements of an agency and includes the approval or prescription for the

future of rates, wages, corporate or financial structures or reorganizations

thereof, prices, facilities, appliances, services or allowances therefor or of

valuations, costs, or accounting, or practices bearing on any of the foregoing.
5See Attorney General's Comm. on Administrative Procedure, Administra-

tive Procedure in Government Agencies, S. Doc. No. 8, 77th Cong., 1st Sess. 102-03

(1941) [hereinafter cited as Committee Report].
*See Staff of Senate Comm. on the Judiciary, 79th Cong., 1st Sess., Report on

the Administrative Procedure Act (Comm. Print 1945), reprinted in Legislative
History of the Administrative Procedure Act, 1946, at 18 (1947) [hereinafter cited

as 1945 Senate Comm. Print].
7
5 U.S.C. § 553(b)(A) (1976). This section of the APA exempted interpretive rules,

general statements of policy, rules of agency organization, procedure, or practice from

rule making requirements except when notice or hearing is required by statute. This
Note uses the term "rule making" to represent the notice and comment proceedings
set out in 5 U.S.C. § 553 (1976).

*Id. § 552(a)(1)(D).



1982] INTERPRETIVE RULE EXEMPTION 877

are interpretive rules.
9 Interpretive rules generally are considered

administrative actions that merely explain to the public the agency's

understanding and interpretation of relevant statutory language. 10

The APA, however, never defined the term "interpretive rule." More
importantly, the APA gave no indication of what distinguishes in-
terpretive rules from legislative rules, which also may "interpret, or
prescribe law or policy." 11

Whether a rule is interpretive or legislative determines the ap-
plicability of the notice and comment proceedings. 12 Generally, the
label attached by the agency indicates what procedures the agency
will follow in promulgating a rule. However, many parties adversely
affected by a rule labeled interpretive have challenged the agency's

failure to follow notice and comment proceedings for rules that the
challenging parties claim are actually legislative.

13
In arbitrating

these disputes, the courts have fashioned vague, confusing, and

often conflicting criteria for distinguishing interpretive from legisla-

tive rules.
14

Criticizing this judicial reluctance to formulate consis-

tent, precise guidelines, one distinguished judge recently stated:

"this court accepts with alacrity the authoritative view that it is not

profitable to explore the asserted distinction between legislative

rules and interpretive rules which is 'fuzzy at best.'
" 15

The dilemma in applying the interpretive rule exemption has
not gone unnoticed by Congress. 16 Currently pending is a proposed

9
Id. § 553(b)(A). This Note is limited to the exemption for interpretive rules. The

APA and other sources use the term "interpretative," but for stylistic reasons this
Note will use the term "interpretive,"

For an excellent discussion regarding the exemption for general statements of

policy, see Comment, A Functional Approach to the Applicability of Section 553 of the
Administrative Procedure Act to Agency Statements of Policy, 43 U. Chi. L. Rev. 430
(1976) [hereinafter cited as Chicago Comment].

'"Committee Report, supra note 5, at 27.

"See 5 U.S.C. § 551 (1976).
12See 2 K. Davis, Administrative Law Treatise § 7:8 (2d ed. 1979 & Supp. 1982)

[hereinafter cited as Treatise].
13
See, e.g., Chrysler Corp. v. Brown, 441 U.S. 281 (1979); Morton v. Ruiz, 415 U.S.

199 (1974); Batterton v. Marshall, 648 F.2d 694 (D.C. Cir. 1980); Energy Consumers and

Producers Ass'n v. Department of Energy, 632 F.2d 129 (Temp. Emer. Ct. App.), cert,

denied, 449 U.S. 832 (1980); Energy Reserves Group, Inc. v. Department of Energy, 589

F.2d 1082 (Temp. Emer. Ct. App. 1978).
14See notes 22-53 infra and accompanying text.
15National Nutritional Foods Ass'n v. Weinberger, 376 F. Supp. 142, 146 n.6

(S.D.N.Y. 1974).

"Congressional concern regarding this provision of the APA is reflected in recent
legislation. See The Regulatory Reform Act, S. 1080, 97th Cong., 1st Sess. (1981)
[hereinafter cited as Regulatory Reform Act], which was passed by the Senate on

March 24, 1982 (128 Cong. Rec. 52713 (1982)) and The Regulatory Procedure Act of

1982, H.R. 746, 97th Cong., 2d Sess. (1982) [hereinafter cited as Regulatory Procedure

Act] which should go to the full House of Representatives for a vote before the end of

the 97th Congress.



878 INDIANA LA W REVIEW [Vol. 15:875

APA amendment that would limit the interpretive rule exemption
to rules that do not "directly and substantially alter or create rights

or obligations of persons outside the agency." 17 Although the lan-

guage of the House and Senate amendments differs slightly, 18 Con-
gress hopes the amendment will untangle the web created by the orig-
inal APA.19 The proposed language alone, however, does not give
the federal agencies or the courts the guidance necessary to apply

the exemption with confidence. Furthermore, the Senate and the
House seem to be at odds on how the amended exemption should be
applied.

20

Drawing upon both judicial and legislative materials, this Note
advocates a definitional approach for applying the exemption.21 To
properly categorize the agency action, this Note proposes a two-step
analysis for determining when an agency action is interpretive and
therefore exempt from rule making procedures. The first step deter-
mines whether the agency has the delegated authority to issue
legislative rules. The next step determines whether the agency has
acted pursuant to this legislative power; that is, whether the agency

is acting in its legislative capacity or in its administrative capacity.

To make this determination, the impact of the agency's action on the
legal and practical interests of the affected party must be con-
sidered.

If the agency action creates a new legal right or obligation, then
it affects the party's legal interests and will be deemed to have the
substantial impact of a legislative rule. By contrast, altering existing
rights or obligations without creating new ones may burden or bene-
fit a party's practical interests. When an agency action is considered

"Regulatory Reform Act, supra note 16, § 553(a)(4) (amending 5 U.S.C. § 553(b)(A)
(1976)).

18The Regulatory Procedure Act states that the exemption does not apply to an
interpretive rule that "has general applicability and would have a substantial impact

on the substantive rights or obligations of persons outside the agency." Regulatory

Procedure Act, supra note 16, § 553(a)(3) (amending 5 U.S.C. § 553(b)(A) (1976)).
19See Senate Report, supra note 1, at 110-14.
20Compare S. Rep. No. 284, 97th Cong., 1st Sess. 110-14 (1981) with H.R. Rep. No.

435, 97th Cong., 2d Sess. 59-63 (1982).
21For recent discussions on the application of the interpretive rule exemption, see

Treatise, supra note 12, §§ 7:1-7:20 (1979); Bonfield, Some Tentative Thoughts on

Public Participation in the Making of Interpretative Rules and General Statements of
Policy Under the A.P.A., 23 Ad. L. Rev. 101 (1971); Koch, Public Procedures for the

Promulgation of Interpretative Rules and General Statements of Policy, 64 Geo. L.J.

1047 (1976); Warren, The Notice Requirement in Administrative Rulemaking: An
Analysis of Legislative and Interpretative Rules, 29 Ad. L. Rev. 367 (1977); Note, Ad-

ministrative Law— The Legislative-Interpretative Distinction: Semantical Feinting
with an Exception to Rulemaking Procedures, 54 N.C.L. REV. 421 (1976); CHICAGO

Comment, supra note 9; Comment, Revenue Rulings and the Federal Administrative

Procedure Act, 1975 Wis. L. Rev. 1135.



1982] INTERPRETIVE RULE EXEMPTION 879

to affect a party's practical interests, it will be deemed to have the
impact of a legislative rule if the action has a significant effect on

the regulated parties and the source of this effect is a dramatic

change from the agency's established position or policy.

This two-step definition allows an agency action to be classified

as interpretive or legislative and, as a result, allows the proper

application of the interpretive rule exemption. If an agency has the

authority to issue legislative rules and exercises that authority,

then its action is legislative and subject to the requirement for

notice and comment. If the agency intends merely to exercise admin-

istrative power, its action is properly classified as interpretive and

exempted from rule making only if that action does not have the

substantial impact of a legislative rule.

II. The Dilemma in Applying the
Interpretive Rule Exemption

A. Case Law

The difficulty in distinguishing interpretive rules and legislative
rules is longstanding and has a tangled history.22 With no definition
of interpretive rules provided by the APA, authorities have
disagreed on what the distinguishing characteristics of an inter-
pretive rule are.23 As a result, the courts have devised two inconsis-
tent methods of analysis for determining which regulations are ex-
empt: the legal effect test objectively classifies a rule as inter-

pretive before applying the exemption;24 the substantial impact test

exempts rules based on whether it is subjectively fair to allow the
agency to act without public opportunity for notice and comment.25

22See Davis, Administrative Rules— Interpretive, Legislative and Retroactive, 57
Yale L.J. 919 (1948); Lee, Legislative and Interpretive Regulations, 29 Geo. L.J. 1, 29

(1940) [hereinafter cited as Lee Article],
23Professor Davis has always maintained that the legislative authority is the only

distinguishing factor between interpretive rules and legislative rules. See Davis, supra

note 22. Other commentators have generally accepted the difficulty in distinguishing

these two types of rules and looked for alternative solutions to the interpretive rule

exemption. See Asimow, Public Participation in the Adoption of Interpretive Rules

and Policy Statements, 75 Mich. L. Rev. 520 (1977) (this Article admits the blurring

line between interpretive and legislative rules and suggests postadoption rule making

procedures when the classification of the rule is challenged); Koch, supra note 21 (this

Article suggests the use of the "good cause exemption"). See also note 21 supra.
2i
See, e.g., Eastern Ky. Welfare Rights Org. v. Simon, 506 F.2d 1278 (D.C. Cir.

1974); Gibson Wine Co. v. Snyder, 194 F.2d 329 (D.C. Cir. 1952); Chemical Specialties

Mfrs. Ass'n v. EPA, 484 F. Supp. 513 (D.D.C. 1980).
25
See, e.g., Lewis-Mota v. Secretary of Labor, 469 F.2d 478 (2d Cir. 1972); Pharma-

ceutical Mfrs. Ass'n v. Finch, 307 F. Supp. 858 (D. Del. 1970); National Motor Freight

Traffic Ass'n v. United States, 268 F. Supp. 90 (D.D.C. 1967) (three judge court), affd

mem., 393 U.S. 18 (1968).



880 INDIANA LAWREVIEW [Vol. 15:875

1. Legal Effect Standard. — The objective legal effect test is
the more popular method of analysis with the courts.26 This test at-
tempts to define the rule as legislative or interpretive before apply-

ing the exemption. To make this determination, the court relies
upon the legal effect distinction set out in the Attorney General's

Manual on the Administrative Procedure Act. The Manual reveals
that a legislative rule is to have a definite legal effect on the

regulated party by withholding a benefit or imposing a penalty for

noncompliance.27 On the other hand, an interpretive rule is to have
no effect other than alerting the public to the agency's opinion on

the statutory law.
28

The leading case on the legal effect standard, Gibson Wine Co.
v. Snyder, was handed down in 1952 by the United States Court of
Appeals for the District of Columbia.29 Gibson Wine Company
challenged the rule making exemption for an Internal Revenue Service

(IRS) rule that required all wine made from the boysen variety of the
blackberry to be labeled boysenberry wine. Gibson Wine Company
claimed that the rule was legislative because the IRS had attempted
to modify or amend the statute. The IRS treated the rule as inter-
pretive and thus exempt, because the IRS construed the rule merely
as a clarification of the statutory provision regarding the labeling of

fruit wines. Prior to the promulgation of this rule, however, the IRS
had no consistent policy on the labeling requirement for
boysenberry wine, and Gibson Wine Company had been labeling the
wine as blackberry wine with IRS approval.

In finding that the agency correctly treated the rule as inter-
pretive, the court relied upon the definition of an interpretive rule
as "one which does not have the full force and effect of a substan-
tive rule but which is in the form of an explanation of particular
terms in an Act."30 Although the court briefly mentioned the gray
area where it is difficult to distinguish interpretive rules from
legislative rules that interpret statutes, the court ignored this

dilemma and held the agency action to be an interpretive rule ex-
empt from notice and comment proceedings.31 The court claimed to

26
See, e.g., Eastern Ky. Welfare Rights Org. v. Simon, 506 F.2d 1278 (D.C. Cir.

1974); Chemical Specialties Mfrs. Ass'n v. EPA, 484 F. Supp. 513 (D.D.C. 1980); see
generally Energy Reserves Group, Inc. v. Department of Energy, 589 F.2d 1082
(Temp. Emer. Ct. App. 1978); National Restaurant Ass'n v. Simon, 411 F. Supp. 993
(D.D.C. 1976).

"United States Deft of Justice, Attorney General's Manual on the Ad-
ministrative Procedure Act 30 n.3 (1947) [hereinafter cited as Attt Gen's Manual].

26
Id.

29194 F.2d 329 (D.C. Cir. 1952).
30
Id. at 331 (quoting Reich, Rulemaking Under the Administrative Procedure Act,

7 N.Y.U. Sch. L. Inst. Proc. 492, 516 (Feb. 1947)).
3l
Id. at 332.



1982] INTERPRETIVE RULE EXEMPTION 881

base this conclusion on the "distinctive characteristics of inter-

pretive rules," but the court evidently looked to the "interpretive"

label attached by the agency and to the agency's treatment of the

rule as interpretive.
32

The court's approach to resolving the application of the inter-
pretive rule exemption makes the classification of a rule as inter-
pretive appear simple. The dissent, however, reveals other criteria
for classifying a rule not addressed by the majority.33 For example,

in considering the clarity of the governing statute, the dissent found

no ambiguity in the statute regarding the labeling of fruit wines.

The dissent argued that the agency therefore could not be issuing a
clarification because the statute was not ambiguous.34 Further, the
dissenting judge looked beyond the mere label of the rule and con-
sidered its impact: the IRS rule required compliance, and such com-
pliance would have an economic impact on the Gibson Wine Com-
pany.35 Weighing these additional criteria, the dissenting judge

would have found that the rule was legislative and thus invalid
because notice and comment proceedings were not followed.36

Gibson Wine Co. illustrates that the legal effect test focuses on
a single criterion in determining whether a rule is interpretive. If a

rule is legally binding, it affects a party's rights and is a legislative

rule; if a rule has no legally binding effect, then it is an interpretive

rule. This test allows some predictability in the application of the
exemption; however, in classifying the rule, the court relies only

upon the agency's labeling of the rule and does not consider the

rule's impact.

2. The Substantial Impact Standard. — Responding to the
failure of the legal effect standard to include the impact of the rule

on the regulated parties, some courts have devised a substantial im-
pact test.

37 Courts applying this test focus on the impact of the rule

and give little weight to the agency's classification, The underlying
rationale for this approach is that fairness requires notice and com-

ment proceedings when the impact of the rule is substantial.

32194 F.2d at 331-34.
33
Id. at 334-36 (Miller, J., dissenting).

3i
Id. at 334. The dissenting judge examined the 1938 statute regarding the label-

ing of fruit wines and found "[tjhis was and is a plain, straightforward, easily under-
stood regulation providing that wine produced from the blackberry shall be called

'blackberry wine.' There is no qualification, limitation, restriction or ambiguity in it."

Id.

35
Id. at 335-36.

36
Id.

31See Lewis-Mota v. Secretary of Labor, 469 F.2d 478 (2d Cir. 1972); Hou Ching
Chow v. Attorney Gen., 362 F. Supp. 1288 (D.D.C. 1973); Pharmaceutical Mfrs. Ass'n v.
Finch, 307 F. Supp. 858 (D. Del. 1970); National Motor Freight Traffic Ass'n v. United

States, 268 F. Supp. 90 (D.D.C. 1967) (three judge court), aff'd mem., 393 U.S. 18 (1968).



882 INDIANA LA WREVIEW [Vol. 15:875

A leading case on the substantial impact test was decided by the
District Court of Delaware in 1970. In Pharmaceutical Manufac-
turers Association v. Finch, 38 the drug companies challenged a
regulation issued without notice and comment proceedings by the
Food and Drug Administration (FDA). The regulation limited the
type of evidence that the FDA would consider in determining a
drug's effectiveness. The FDA had no previous uniform policy for
the type of evidence to be submitted, and, prior to the rule, the

agency had accepted a broad range of such information from the

drug companies.39

To determine whether the regulation was exempt from rule
making, the court rejected the definitional labels of interpretive or

legislative. Instead, the court considered whether the impact of the

rule was so substantial that rule making was necessary.40 The court
looked to two criteria to determine whether the impact was substan-
tial: whether the regulations were pervasive in scope and whether
the regulations had an immediate and substantial impact.41 In con-

cluding that the regulations had a substantial impact, the court

found that the FDA regulations "apply to more than 2000 drug pro-
ducts . . . and place all of them in jeopardy, subject to summary
removal by order of FDA."42

As the FDA rule met the criteria for substantial impact, the
court then considered whether the impact of the rule was caused by
the requirements of the underlying statute or by the agency's ac-

tion.
43 The purpose for this inquiry was to determine whether the

agency was merely interpreting statutory language or whether the
agency was using its legislative power to enact a legislative rule. To
determine the source of the impact the court considered whether

the agency action was a dramatic change and whether confusion and
controversy resulted from the agency action.44

In applying these criteria the court found that the agency action

created a dramatic change because "the administrative practice apply-
ing the statutory standard to drugs marketed before 1962 has not
uniformly insisted on evidence produced in accordance with the . . .
[new] regulations."45 In addition, the court found that "considerable

confusion and controversy" surrounded the regulations.46 Thus, the

38307 F. Supp. 858 (D. Del. 1970).
39/d at 864.

"Id. at 863.
il
Id. at 864.

i2
Id.

i3
Id. at 864-65.

"Id. at 865-68.
i5
Id. at 864.

46M at 865.



1982] INTERPRETIVE RULE EXEMPTION 883

court was persuaded that the regulation was a legislative action by
the agency, and held the agency rule to be invalid because notice

and comment proceedings had not been followed.47

The substantial impact standard was broadened in 1972 when the
United States Court of Appeals for the Second Circuit held that any

change in existing rights and obligations was a substantial impact.48

In Lewis-Mota v. Secretary of Labor,*
9
aliens challenged the Secre-

tary of Labor's decision to stop issuing lists of jobs available to alien

workers without providing notice and comment proceedings. Prior
to the Secretary's action, aliens could rely upon this job information

when applying for a permanent visa. As a result of the Secretary's
action, aliens seeking certification for permanent visas were re-

quired to submit specific evidence of a job offer. In addition, those

aliens already certified but waiting for a permanent visa had to re-

validate their certification; however, they could retain their priority

position for a visa if they could show a job offer.
The district court held that the Secretary's action was interpre-

tive because it did not prejudice the aliens' priority status for per-

manent visas, nor did it alter or create legal rights or obligations.50

The appellate court rejected the lower court's holding and found the

action invalid because there was no opportunity to comment on the
action.

51 Although the rule only affected the existing rights and obli-

gations of aliens and any prospective employers without creating

new ones, the court found that this effect was substantial enough to
create the need for notice and comment proceedings.52

Thus, the substantial impact test fills a void in the legal effect

test by looking to the impact of the rule. However, this approach

does not classify a rule as interpretive but utilizes the vague con-

cept of fairness to determine whether rule making is required. As a
result, the determinations under the substantial impact test are not

as predictable as under the legal effect standard. In addition, many
courts have rejected the substantial impact test because they do not

find it supported by the congressional intent for exempting interpre-

tive rules.
53

"Id.
48Lewis-Mota v. Secretary of Labor, 469 F.2d 478 (2d Cir. 1972). See also the opin-

ion of the district court, Lewis-Mota v. Secretary of Labor, 337 F. Supp. 1289 (S.D.N.Y.
1972).

49469 F.2d 478 (2d Cir. 1972).
50337 F. Supp. at 1289.
5I469 F.2d at 482.
52
Id.

MSee Energy Reserves Group, Inc. v. Department of Energy, 589 F.2d 1082, 1093-98

(Temp. Emer. Ct. App. 1978). The court in discussing the substantial impact test found that
"[t]he words 'substantial impact' do not appear in § 553 of the APA. They constitute an un-
warranted judicial gloss on the statute misapplied in the context of these cases." Id. at 1094.



884 INDIANA LA W REVIEW [Vol. 15:875

B. The Proposed Amendment to the Interpretive Rule Exemption

The dilemma surrounding the interpretive rule exemption has
not gone unnoticed by Congress. Both the United States Senate and
House of Representatives have proposed similar amendments to the
interpretive rule exemption.54 The congressional intent that the im-
pact of the rule should be considered in applying the interpretive

rule exemption is clear from the language of the amendments. How-
ever, the proposed language does not indicate how the impact of the
rule should be measured or how the measured impact should be uti-
lized in determining whether a rule is exempt.

Unfortunately, the House and Senate Reports do not offer clear
interpretations of the proposed amendments.55 The Reports also are
at odds on the important questions presented by the amendment.
The Senate Report seems to imply that the impact of a regulation
on a party's rights and obligations should be considered in classify-

ing a rule as interpretive;
56 however, the House Report states that

the rule's impact determines whether the rule is exempt from notice
and comment proceedings.57

1. The Senate Amendment. — The proposed Senate amendment
would exempt an interpretive rule from notice and comment pro-
ceedings "unless it has general applicability and substantially alters

or creates rights or obligations of persons outside the agency."58 In-

terpreting the amendment, the Senate Report states that the
"ultimate impact of the rule must be the basic criterion for applica-
tion of the exemption."59 This statement offers guidance in applying

the exemption by directing consideration to the impact of the rule;

however, it does not delineate how to measure that impact.
The Senate Report does describe circumstances where the de-

gree of the impact is sufficient to require rule making, including

"severe consequences" from the interpretive rule, and rights or obli-

gations "substantially altered."
60 These descriptive terms indicate a

fairly high threshold for the impact test. This would be consistent

with the Senate Report's conclusion that, to require rule making,

5iSee note 16 supra.

^Compare S. Rep. No. 284, 97th Cong., 1st Sess. 110-14 (1981) with H.R. Rep. No.

435, 97th Cong. 2d Sess. 59-63 (1982).
MSee Senate Report, supra note 1, at 110-14.
51See Staff of House Committee on the Judiciary, Report on the Regulatory

Procedure Act, H.R. Rep. No. 435, 97th Cong., 2d Sess. 59-62 (1981) [hereinafter cited

as House Report].
"Regulatory Reform Act, supra note 16, § 553(a)(4) (amending 5 U.S.C. § 553(b)(A)

(1976)).
59Senate Report, supra note 1, at 113.
60
Id. at 112. The Report also discusses the impact of the future effect of the rule

and the effect of a dramatic change. Id.



1982] INTERPRETIVE RULE EXEMPTION 885

the impact of a rule must be more severe than simply affecting a
party's expectations.

61

Other authority relied upon by the Senate Report does not re-
quire a significant effect to find a substantial impact.

62 The substan-
tial impact cases cited by the Senate Report63 employ a low
threshold for finding a substantial impact.

64 The most striking ex-
ample is the 1967 decision by the District of Columbia District Court
in National Motor Freight Traffic Association v. United States.65 In
that case the freight carriers objected to an optional, informal pro-

cedure announced by the ICC that would allow shippers and carriers
to voluntarily settle an overcharge dispute. The court found that the
effect on the regulated parties from this completely optional pro-

cedure was not "so insignificant in nature ... as to fall outside the
rule-making requirements."66

In addition to imposing confusing standards for measuring the

impact, the Senate Report is ambiguous in explaining whether the

impact of the rule is used to identify an interpretive rule or to indi-

cate when fairness requires rule making.67 By exempting an inter-
pretive rule "unless . . . ," the plain language of the amendment
could be construed as acknowledging two types of interpretive

rules: those which are exempt and those which are not exempt.68

Thus, a rule could be interpretive, but because it "substantially . . .

alter[s] or create[s] rights or obligations," it would not be exempt
from rule making.69

The text of the Senate Report, however, supports the conclusion
that the amendment language was intended to be used as a defini-
tional tool. The Senate Report states that "an agency 'interpreta-
tion' . . . which has the effect of creating or altering obligations or

rights is not an 'interpretive rule' . . . within the meaning of this ex-

n
I<L at 114.

62
Id. at 112-14 (discussing, among other cases, Lewis-Mota v. Secretary of Labor,

469 F.2d 478 (2d Cir. 1972); Stubbs, Overbeck & Assoc, v. United States, 445 F.2d 1142
(5th Cir. 1971)).

63Senate Report, supra note 1, at 113-14.
MSee notes 38-53 supra and accompanying text.
65268 F. Supp. 90 (D.D.C. 1967) (three judge court), aff'd mem., 393 U.S. 18 (1968).
M
Id. at 95.

"See Senate Report, supra note 1, at 110-14.
68See Regulatory Reform Act, supra note 16, § 553(a)(4).
69See Senate Report, supra note 1, at 111. This interpretation of the proposed

language is supported by the Senate Report's reference to Professor Davis, who has
stated that "[t]he main occasion for judicial requirement of notice and comment pro-
cedure for rule making that is exempt from § 553 has to do with adoption of inter-
pretative rules that have significant impact upon affected persons." Id. at 111 (quoting
K. Davis).



886 INDIANA LA WREVIEW [Vol. 15:875

emption." 70 This recognizes the distinction between agency rules

that interpret and interpretive rules that explain or clarify. This

statement indicates that the Senate intended one type of inter-

pretive rule, the proper classification of which would determine the

applicability of the exemption.

2. The House Amendment.— The amendment proposed by the
House states that the notice and comment proceedings will not apply to
"any interpretative rule . . . other than an interpretative rule . . .

that has general applicability and would have a substantial impact

on the substantive rights or obligations of persons outside the

agency."71

The House Report72 interpreting this amendment is straightfor-
ward on how the impact of an agency action should be measured and
how that substantial impact should be utilized in applying the ex-
emption. The test set out by the House Report for determining sub-
stantial impact is composed of three essential elements: the impact
must be substantial, the impact must be upon substantive rights or
obligations, and the impact must affect persons outside the agency.73

This test alone is little more illuminating than the proposed
statutory amendment. Thus, the House Report attempts to draw
boundaries by limiting a substantial impact to an impact which "can-

not be incidental or trivial but instead must be palpable and signifi-
cant."

74 Because substantial is a measurement that is relevant only
in relation to the degree of other impacts, by defining substantial

with other relative words, the House Report's definition makes it
difficult to determine what constitutes a substantial impact.

The cases relied upon by the House Report to illustrate substan-
tial impact create more confusion than clarity. The House Report en-
dorses the finding of substantial impact in Pharmaceutical Manufac-

turers Association v. Finch15 where the FDA acted to limit, for the
first time, the nature of the evidence required to provide substantial

evidence of a drug's effectiveness. However, the House Report
states that "Revenue Rulings . . . are classic examples of inter-
pretative rules" 76 and cites National Restaurant Association v.

Simon17 as an illustration. In National Restaurant, the IRS imposed
a new and costly reporting requirement compelling employers to

70Senate Report, supra note 1, at 112.
"Regulatory Procedure Act of 1982, House Report, supra note 57, at 90-91.
12See House Report, supra note 57, at 59-62.
13
Id. at 61.
u
Id.

75307 F. Supp. 858 (D. Del. 1970). See also notes 38-47 supra and accompanying

text.
76House Report, supra note 57, at 62.
77
411 F. Supp. 993 (D.D.C. 1976).



1982] INTERPRETIVE RULE EXEMPTION 887

keep records of the charge tips paid to employees and to report

them to the IRS. The court found that these requirements were
within the IRS's authority and that the Revenue Ruling did not
have a substantial impact.78

The IRS rule in National Restaurant appears to have an impact
that is greater than incidental or trivial; thus, it is difficult to

rationalize why the impact of the FDA's action in Pharmaceutical
Manufacturers was substantial, but the impact of the IRS reporting
requirement in National Restaurant was not.79 If the Revenue Ruling
cases fairly illustrate the type of impact the House considered to be
insignificant, then the House intended the substantial impact to be a
very strict test. However, in comparing the impact of these Revenue
Ruling cases with Pharmaceutical Manufacturers, it is difficult to

discern what effect is sufficient to make a rule's impact substantial.
Although it is difficult to determine how the House intends to

measure the rule's impact, the House Report expressly states how
the substantial impact should be applied. According to the House
Report, "it is only after an agency action is classified as an interpre-

tive rule . . . that new subparagraph 553(a)(3) imposes a new statu-
tory obligation." 80 Thus, the new language would give a statutory
basis for requiring certain interpretive rules to be subject to notice

and comment proceedings.81 This indicates that the House recognizes
two different types of interpretive rules: those that have an in-
significant impact and therefore are exempt from notice and com-
ment proceedings, and those that have a substantial impact and
must be subject to formal rule making proceedings.

In rejecting the consideration of the rule's impact in classifying

the rule, the House Report states that "the fundamental differences
between the legal status of legislative rules and interpretive rules . .

.

should not always dictate the applicability of procedural re-

quirements."82 This rationale ignores the policy reasons for exempt-
ing interpretive rules. Congress originally exempted rules that were
properly classified as interpretive because the effect of these rules

n
Id. at 999.

19See also Eastern Ky. Welfare Rights Org. v. Simon, 506 F.2d 1278 (D.C. Cir.

1974). In this case, certain poor people challenged an IRS Revenue Ruling that changed
the long-standing definition of the word charitable, so that a hospital could now qualify
as a tax-exempt organization without providing free or below-cost service to those

unable to pay. The court found that this action was merely an interpretation of the
statutory law and did not have a substantial impact. In his dissent, Judge Wright

pointed out that the effect of the agency's action was a substantial change in the
availability of hospital services for the poor.

80House Report, supra note 57, at 61.
61See id. at 60.
87d at 59.



888 INDIANA LAWREVIEW [Vol. 15:875

was not substantial enough to trigger the need for notice and com-
ment proceedings.83

The House Report also states that Congress does not intend the
proposed amendment to the interpretive rule exemption to "other-
wise overrule, change or in any [way] affect the current practices of
courts in determining whether a particular agency action is a legisla-
tive rule, [or] an interpretive rule . . . ."84 Yet, at the same time, the
House Report rejects the use of the substantial impact test to deter-
mine whether the rule is legislative.85 Thus, it appears that the

House Report relies upon the cases which employ the legal effect
test to determine whether a rule is legislative or interpretive.

The application of the exemption as set forth in the House
Report does not solve the original problem with the interpretive

rule exemption; that is, determining whether the agency has promul-

gated an interpretive or legislative rule. The House Report accepts
the definition of an interpretive rule as one that "

4

advise[s] the

public of the agency's construction of the statutes and rules which it

administers.'
" 86 This definition, however, is the original definition

from the 1941 Attorney General's Manual and does not untangle the
problem created by the courts in trying to define an interpretive

rule.
87

III. The Definitional Approach to
the Interpretive Rule Exemption

The proposed amendment to the APA could mark a new beginning
for the interpretive rule exemption. This will occur, however, only if

the ambiguities and conflicts surrounding the interpretive rule ex-

emption are resolved and the application of the exemption produces

clear, consistent results. To achieve these objectives, this Note ad-
vocates a definitional approach to the application of the exemption.

A definitional approach would preclude a court from imposing notice
and comment proceedings based on a fairness analysis. Rule making
procedures would be determined by classifying an agency action as

legislative or interpretive.

The definitional approach is superior to the fairness analysis
because it is more likely to produce the results that Congress
intended when it created the exemption for interpretive rules. Con-
gress exempted interpretive rules from notice and comment pro-
ceedings after weighing the public's need to know the agency's posi-

83See notes 88-96 infra and accompanying text.
84House Report, supra note 57, at 61-62.
85
Id. at 61.

"Id. at 60 (quoting Atty Gens Manual, supra note 27, at 30 n.3).
*7See notes 22-25 supra and accompanying text.



1982] INTERPRETIVE RULE EXEMPTION 889

tion on substantive matters and the public's need for procedural

safeguards against agency action.88 Because interpretive rules have

no binding effect on the regulated parties or the courts,89 Congress

concluded that notice and comment proceeduings were not a neces-
sary precaution for interpretive rules.90 In addition, a party affected

by an interpretive rule was protected by other procedures in the
APA, including "an opportunity for private persons to secure a
reconsideration of such rules . . . and plenary judicial review."91

More importantly, Congress exempted interpretive rules
because it "desired to encourage the making [public] of such rules."92

Congress was aware that agencies issue many interpretive rules
that directly and indirectly affect the public.93 The rules, however,
are inside information and, unless the agency willingly reveals its

views or interpretations, such information will remain unknown.94 If

881945 Senate Comm. Print, supra note 6, at 18. The report stated three reasons
for exempting interpretive rules from rule making procedures:

First, it is desired to encourage the making of such rules. Secondly, those

types of rules vary so greatly in their contents and the occasion for their is-

suance that it seems wise to leave the matter of notice and public procedures

to the discretion of the agencies concerned. Thirdly, the provision for peti-

tions contained in subsection (c) affords an opportunity for private parties to

secure a reconsideration of such rules when issued. Another reason, which
might be added, is that "interpretative" rules — as merely interpretations of
statutory provisions — are subject to plenary judicial review, whereas
"substantive" rules involve a maximum of administrative discretion.

Id.

*9See Committee Report, supra note 5, at 99-100. The Committee Report looks to
the consequences of the rule to find it has no immediate legal effect. It states that in-

terpretive rules "do not receive statutory force and their validity is subject to

challenge in any court proceeding. . . . The statutes themselves and not the regulation
remain in theory the sole criterion of what the law authorizes or compels.'Td.

90See 1945 Senate Comm. Print, supra note 6, at 18. It is important to realize

that in reaching this conclusion Congress not only considered the inherent distinctions

between the rules but also looked to the consequences that flow from these rules. See

also Chicago Comment, supra note 9, at 439-55, for an interesting discussion of the

relationship between the purpose of rule making and the function of the exemption.
91 1945 Senate Comm. Print, supra note 6, at 18. The report is making reference

to other provisions in the APA which are intended to protect the public's interest. 5
U.S.C. § 553(e) (1976) provides that "each agency shall give an interested person the

right to petition for the issuance, amendment, or repeal of a rule." 5 U.S.C. § 706 (1976)

provides for de novo review for rules which have not followed formal rule making pro-

cedures.
92
1945 Senate Comm. Print, supra note 6, at 18.

93
Id. This is still true today. In a recent article, M. Asimow found that "inter-

pretive rules and policy statements are of great importance to the public in alerting

them to the agency's position on substantive matters. They frequently have a substan-

tial impact on the affairs of large segments of the public because they definitely affect

the behavior of agencies and interested persons or groups," Asimow, supra note 23,

at 528-29.
94See Committee Report, supra note 5, at 27. Because an interpretive rule is the



890 INDIANA LA WREVIEW [Vol. 15:875

an agency were forced to go through notice and comment pro-
ceedings for all interpretive rules, Congress feared that the burden

on the agency would be too great95 and that the agency would "go

underground" with all its inside information rather than comply with

notice and comment proceedings.96 Thus, because of the interpretive
rule's minimal impact on a regulated party and the importance of

making such rules public, Congress exempted interpretive rules
from notice and comment proceedings as an incentive for the agen-
cies to promulgate their opinions and clarifications of statutes, rules,

and policies.

Some courts and commentators argue that a fairness analysis of
an agency action allows the courts to apply the procedural require-

ments of the APA in a manner that most clearly achieves the re-
sults intended by Congress.97 Although an approach which considers

whether it is fair for the agency to proceed without notice and com-

ment proceedings does provide flexibility to the system, this benefit
may undermine the purpose for the exemption. The flexibility in
this approach is based on the court's application of the vague and

subjective standard of fairness. As a result, it is likely that decisions
based on a fairness analysis would create inconsistent determina-

tions and would not clearly indicate to the agencies the type of rules

that are exempt from notice and comment proceedings.98

A definitional approach would force courts to grapple with the
classification of a rule. This task would be difficult and would cer-

tainly involve an impact test that weighs the fairness of exempting

an agency action which has an impact on the regulated party's inter-

ests. The courts, however, would focus on the more precise deter-
mination of when an agency action is an interpretive rule, rather
than whether it is fair to exempt the agency action from notice and
comment proceedings. This approach should eventually produce
clearer guidelines for the agencies regarding the characteristics of

an interpretive rule. Thus, the agencies would have some indication
of what actions are interpretive rules and fall within the inter-

agency^' belief or opinion regarding a statute, other law, or rule, the agency may sim-
ply send such information to its employees and agents, without making such information

public. No present provision in the APA requires that such inside information be made
public. See 5 U.S.C. § 553 (1976).

95See 1945 Senate Comm. Print, supra note 6, at 18.
96The phrase "go underground" refers to the possibility that agencies could

operate according to secret, undisclosed policies in order to avoid the rule making re-
quirements. See Bonfield, supra note 21, at 113.

91See Treatise, supra note 12, § 7:18.
9SSee notes 37-52 supra and accompanying text. The results in the cases following

the substantial impact test indicate that a fairness analysis does not produce a consis-

tent standard.



1982] INTERPRETIVE RULE EXEMPTION 891

pretive rule exemption. The definitional approach, and not the
fairness analysis, will create an atmosphere that encourages agen-

cies to publish their policies and opinions on the statutory law.

In addition to furthering the basic policy behind the interpretive

rule exemption, a definitional approach would avoid a conflict with

the recent Supreme Court decision in Vermont Yankee Nuclear
Power Corp. v. Natural Resources Defense Council, Inc." In review-
ing the appellate court's finding that the agency's rule making pro-
cedures were inadequate, the Supreme Court held that courts can-
not impose on agency actions any procedural requirements greater

than those imposed by section 553 of the APA.100 The Supreme
Court found that the legislative history of the APA "leaves little
doubt that Congress intended that the discretion of the agencies and

not that of the courts be exercised in determining when extra proce-
dural devices should be employed." 101

If notice and comment proceedings are required for an interpre-
tive rule on the basis of fairness, the court would be substituting its

judgment for the agency's discretionary decision regarding the best
procedure for promulgating an agency action. Although the pro-

posed amendment to the interpretive rule exemption may be con-
strued as giving courts the statutory authority to impose notice and

comment proceedings, this approach would contradict the rationale
for the decision in Vermont Yankee. In Vermont Yankee, the
Supreme Court realized that if courts were allowed to continually
review the adequacy of agency proceedings, the results would be

unpredictable, and, as a direct consequence, agencies would impose

strict procedures in order to avoid reversal by the courts. 102 An
analogous result would occur if the proposed APA amendment were
interpreted as giving the courts the statutory authority to order an

agency to proceed with notice and comment proceedings for an in-
terpretive rule. The incentive for issuing interpretive rules would
evaporate. Agencies would go underground with their interpreta-

tions to avoid the burden of notice and comment proceedings, a
result in clear contravention of congressional intent.

A definitional approach also avoids problems resulting from having
two types of interpretive rules: interpretive rules subject to notice

and comment proceedings and interpretive rules that are exempt.
Under the original APA, distinct consequences flow from the valid
classification of the agency's action. A valid legislative rule is given
the force and effect of law and is subject to limited review by the

"435 U.S. 519 (1978).
m
Id. at 544-46.

m
Id. at 546.

102
Id. at 546-47.



892 INDIANA LAWREVIEW [Vol. 15:875

courts; a valid interpretive rule has no legally binding effect and is

subject to full review by a court.103 These different consequences are

keyed to the requirement for rule making procedures.
If the application of the interpretive rule exemption allowed a

rule to be classified as interpretive but treated as a legislative rule

for rule making procedures, all the consequences flowing from a proper
classification would be upset. If all interpretive rules are consid-

ered to have no legally binding effect regardless of the promulgation

procedure, then the time and energy an agency employs in holding

notice and comment proceedings for a nonbinding interpretive rule
will be an inefficient use of time. However, if an interpretive rule is
treated as a legislative rule only because it is issued after notice and

comment proceedings, then an agency action that is interpretive
could be legally binding and subject to a limited review by the

court.

In the original APA, the consequences of agency actions were in-
herently related to the classification of the action as interpretive or

legislative. The new language in the proposed interpretive rule ex-
emption does not indicate that Congress intended this amendment
to create such radical changes in the treatment of interpretive

rules.
104

IV. Analysis for Classifying an Interpretive Rule

Under the definitional approach, a party's claim that an exempted
rule is void because proper rule making procedures were not fol-
lowed is a direct challenge to the classification of the rule itself. In

determining whether the interpretive rule exemption is applicable,

the court must consider whether the rule is interpretive or legisla-
tive. To make this determination properly, the court must look to
the inherent characteristics of the rule.

Before the APA, legislative and interpretive rules were distin-
guished on the basis of the delegated authority of the agency.105

When agencies were first created, they had the authority to ad-
minister the statute.

106 However, agencies had no inherent power to
make law through their rules and regulations, because law-making

mSee Committee Report, supra note 5, at 27; Treatise, supra note 12, §§ 7:8,
7:11, 7:13.

"'Compare 5 U.S.C. §§ 551-559 (1976) with Regulatory Reform Act, supra note 16

and Regulatory Procedure Act, supra note 16. The proposed Regulatory Reform Act

does not contain any provisions that would alter the scope of review or the legal effect

of an interpretive rule under the original APA.
105See Lee, supra note 22.
m
Id. at 1-3.



1982] INTERPRETIVE RULE EXEMPTION 893

power is a function that belongs to a legislative body. 107 When Con-
gress began delegating law-making power to agencies, a distinction
arose between the regulations the agency issued under this
statutorily delegated legislative power, and the regulations that

were issued by the agencies under their general powers to adminis-
ter the statutory law.108 When an agency exercised its delegated
legislative power to make law through rules, the rule was legislative
with the force and effect of law.109 When an agency action merely
sought to construe the terms of a statute, the rule was interpretive
and had no legally binding force or authority. 110

When Congress passed the APA, these concepts regarding inter-
pretive rules and legislative rules were incorporated into the rule
making provisions. 111 According to the legislative history of the
APA, notice and comment proceedings were for substantive rules
that resulted from the agency's exercise of legislative powers.112 The
exemption from notice and comment was for rules issued under the
agency's general administrative power which merely clarified the
language of the statute.113

Thus, upon careful review of the historical distinctions between

these rules, two distinguishing characteristics are discernable: the

authority exercised by the agency when it issues the rule and the
substantive impact of the rule on the regulated party.

The courts have had a difficult time utilizing these inherent
characteristics to classify rules. The substantial impact test, relied
upon by some courts, is inadequate for determining the proper clas-
sification of a rule. This test does set out useful criteria for deter-

mining the impact of the agency action on the regulated party.114

However, by focusing only on impact, those courts fail to consider

the other characteristic of a rule — the source of the agency's
authority for its promulgation.

The legal effect test also fails to provide an adequate standard
for classifying a rule as interpretive. Courts relying on this test con-

sider only whether the agency action has any legal effect upon the

107Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev.

1669, 1672 (1975).
mSee Treatise, supra note 12, §§ 7:8, 7:9.
109
Lee, supra note 22, at 3.

no
Id.

ulThe language in the Attorney General's Committee Report and the Attorney

General's Manual is very similar to the language in Lee's 1940 law review article.

Compare Committee Report, supra note 5, at 27, 99-100 and Atty Gews Manual,
supra note 27, at 30 n.3 with Lee, supra note 22, at 3.

n2See Atty Gens Manual, supra note 27, at 30 n.3.
113
/d.

n4See notes 37-52 supra and accompanying text.



894 INDIANA LAW REVIEW [Vol. 15:875

regulated party and the courts. 115 The legal effect of an agency ac-
tion, however, is distinct from the characteristic impact of the agen-

cy's action. The legal effect of a rule is the independent force that
allows the agency action to be enforced as a binding rule of law by

the agency or the courts. 116 This legally binding force is not an in-

herent characteristic of any agency action; it is a consequence that

flows only from a rule that has been properly classified as legisla-

tive and issued according to notice and comment proceedings.117

Thus, an agency action cannot have any legally binding effect until

it is determined to be a valid legislative rule. 118

Courts that apply the legal effect standard and follow the reasoning

set forth in Gibson Wine 119 are caught in an analytical circle. If an
agency labels a rule as interpretive and does not hold notice and

comment proceedings, then the court applying the legal effect test
would find that the rule had no legal effect; if the rule had no legal

effect, then the court would concur in the agency's interpretive

label. As a result, this method of analysis never steps beyond the
consequence of the rule's legal effect to consider the distinguishing

characteristics of an agency action.

Because the current methods of analysis are inadequate in classi-

fying a rule as interpretive, this Note proposes a two-step process

for classifying an agency action that considers the source of the

agency's authority and the impact of the agency's action. In sug-

gesting this approach, this Note recognizes that to encourage agen-

cies to disclose their policies, the impact of the agency action must

be measured with a scale that is sensitive both to the interests of

the regulated parties and to the purpose of the interpretive rule ex-

emption.

A. Source of Authority

To determine whether an agency is acting with legislative
authority in issuing a rule, it must first be ascertained that the
agency has been delegated legislative authority. Because of the per-

ceived benefits from notice and comment proceedings, courts have
been eager to find delegated legislative authority. 120 Therefore, most

U5See notes 26-36 supra and accompanying text.
n6See Committee Report, supra note 5, at 27; Attt Gen's Manual, supra note

27, at 30 n.3.
niSee Committee Report, supra note 5, at 27; Treatise, supra note 12, §§ 7:8,

7:11, 7:13.
118See Committee Report, supra note 5, at 99-100; Joseph v. United States Civil

Serv. Comm'n, 554 F.2d 1140, 1152-54 n.26 (D.C. Cir. 1977); see generally Treatise,
supra note 12, § 7:8.

119See notes 26-36 supra and accompanying text.
m
See, e.g., Chamber of Commerce of the United States v. OSHA, 636 F.2d 464



1982] INTERPRETIVE RULE EXEMPTION 895

courts will not require specific language granting authority to issue

legislative rules
121 but will construe the relevant statutory language

as granting legislative authority to the agency.
122 The Supreme

Court in Chrysler Corporation v. Brown found that legislative
authority exists if "the reviewing court [may] reasonably be able to

conclude that the grant of authority contemplates the regulations

issued."
123 This liberal standard allows a court to find legislative

authority in most general statutory language unless legislative

authority is explicitly denied.

Certain agencies do not have the power to issue legislative rules
because they have not been delegated rule making power. 124 In
General Electric Co. v. Gilbert™ the Supreme Court interpreted the
authoritative weight of a 1972 guideline issued by the Equal Em-
ployment Opportunity Commission (EEOC) and relied upon by a
group of employees claiming discrimination under General Electric's

disability plan. The Court first looked to the legislative authority of
the EEOC and found that Congress had never conferred legislative
authority upon the EEOC to issue rules and regulations.126 The
Court concluded that the agency's action could only be interpretive;

therefore, no further inquiry was necessary to classify the EEOC
guideline.

127

In reviewing agency actions, courts which focus only on the im-

pact of the rule have failed to consider the source of the agency's

authority. In 1974, the Court of Appeals for the District of Columbia

(D.C. Cir. 1980); National Petroleum Refiners Ass'n v. FTC, 482 F.2d 672 (D.C. Cir.

1973), cert, denied, 415 U.S. 951 (1974). See also SEC v. Chenery Corp., 332 U.S. 194
(1947).

12l
See, e.g., Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, 653 (1973)

(that the agency's power to determine "new drug" status in its own administrative pro-
ceedings was implicit in the regulatory scheme though "not spelled out in haec verba");

CIBA Corp. v. Weinberger, 412 U.S. 640, 643 (1973) (the construction was powerfully
influenced by the recognition that a different view would seriously impair FDA's abil-

ity to discharge the responsibilities placed on it by Congress); CIBA-Geigy Corp. v.

Richardson, 446 F.2d 466, 468 (2d Cir. 1971) (in finding that the agency has the power

to issue legislative rules, the court observed that "the particularization of a statute by

rule-making is not only acceptable in lieu of protracted piecemeal litigation . . . but it is

the preferred procedure").
m
See, e.g., FTC v. Dean Foods Co., 384 U.S. 597 (1966); FPC v. Texaco, Inc., 377

U.S. 33 (1964); National Broadcasting Co. v. United States, 319 U.S. 190 (1943);

American Airlines, Inc. v. CAB, 359 F.2d 624 (D.C. Cir. 1966).
123441 U.S. at 308.
124An example of an agency that has no express or implied legislative power is the

Equal Employment Opportunity Commission (EEOC). The rules issued by the EEOC
are only of an advisory nature and are not legally binding. 42 U.S.C. § 2000e-12.

125429 U.S. 125 (1976).

™Id. at 140-46.

™Id.



896 INDIANA LAWREVIEW [Vol. 15:875

reviewed a regulation adopted without notice and comment by the
parole board in Pickus v. United States Board of Parole.

128
In Pickus,

a prisoner objected to the parole board regulation, claiming that the

rule, which set forth certain factors for determining parole eligibility,

had a substantial impact upon his parole determination. The court
held that the impact of the regulation was substantial, and thus
notice and comment proceedings were required.129 The agency's action,
however, could not be legislative because the parole board had no

delegated authority to issue legislative rules.130

The Pickus case illustrates the importance of the initial deter-
mination regarding the source of the agency's rule making author-
ity. The lack of legislative authority, however, is the exception to
the general rule that agencies have the authority to issue both legis-

lative and interpretive rules.131 Thus, the source of an agency's

authority for issuing a rule is an essential, but generally nondeter-

minative, characteristic of interpretive or legislative rules.132

If an agency has legislative authority, the next step in defining a

rule as interpretive or legislative is to determine whether the agency
intended to promulgate the rule pursuant to that legislative author-

ity. This is accomplished by measuring the effect of the agency's ac-
tion on the affected party's legal and practical interests.

B. Impact of Agency Action

1. Impact on Legal Interests. — Notice and comment pro-
ceedings are intended to protect the regulated party from the ar-

bitrary actions of the unrepresentative agencies.133 This protection is

necessary whenever agencies issue "regulations which in form or ef-
fect are like the statutes of Congress." 134 An agency action which af-
fects a party's legal interests is "in form or effect" like the laws prom-

ulgated by Congress.135 Furthermore, such agency action creates

the type of effect Congress considered to be characteristic of a legis-

128
507 F.2d 1107 (D.C. Cir. 1974).

m
Id.

130
This decision has been criticized for the court's failure to consider the rule mak-

ing power of the agency. See Treatise, supra note 12, § 7; Asimow, supra note 23.
131See notes 120-22 supra and accompanying text.
132See Davis, supra note 22. Davis recognized that distinguishing interpretive

rules on the basis of the delegation of authority is "weak in the borderland." Id. at 928.
133See S. Rep. No. 752, 79th Cong., 1st Sess. 12-13 (1945); H.R. Rep. No. 1980, 79th

Cong., 2d Sess. 21-23 (1946).
134See Willapoint Oysters, Inc. v. Ewing, 174 F.2d 676, 686-87 (9th Cir. 1949) ("[t]he

definitions of 'Rule' or 'Rule-making' apply whenever agencies are exercising

legislative functions and powers, i.e., when issuing general or particular regulations
which in form or effect are like the statutes of Congress").

135See Committee Report, supra note 5, at 100-03.



1982] INTERPRETIVE RULE EXEMPTION 897

lative rule.
136

If an agency action affects the party's legal interests,

that impact is indicative of the agency's intent to act in its

legislative capacity and to issue a legislative rule. Thus, agency ac-

tion that affects the legal interests of the regulated party produces

a substantial impact.

To apply this measuring test for impact, it must be determined
whether the agency action affects legal interests. It seems clear that
whenever an agency implements a statute and creates a new duty
for the regulated party, it affects the party's legal interests.137

However, the majority of courts which apply the interpretive rule
exemption, quite understandably have had a difficult time determining

whether the rule creates a new duty or simply alters an existing
duty.

The courts following the substantial impact test have been more
concerned with the degree of impact than with the interests affected

by the rule. 138 In National Motor Freight Traffic Association, 139 the
court did not consider whether the optional, voluntary procedure to

settle overcharges created a new duty for shippers and carriers.
Regardless of the interests affected, the court concluded that "the

Commission took a significant step" which required notice and com-

ment proceedings. 140 The appellate court in Lewis-Mota141 overruled
the lower court's finding that the agency action did not affect a par-

ty's legal interests.
142

It is unclear from the appellate court's opinion,

however, whether the court rejected the district court's conclusion

because the agency action did create a new obligation or duty, or
whether the appellate court accepted the district court's finding but

required notice and comment due to the substantial impact of the
rule on practical interests.143

The courts applying a legal effect standard have also had dif-
ficulty determining whether agency action creates a new duty that
affects a party's legal interest. An erroneous conclusion that the
rule has no legally binding effect precludes the court's analysis of

the interests affected by the agency action. 144 In the recent decision

™See id.
131See generally Treatise, supra note 12, § 7:8.
l38
See, e.g., Lewis-Mota v. Secretary of Labor, 469 F.2d 478 (2d Cir. 1972); Texaco,

Inc. v. FPC, 412 F.2d 740 (3d Cir. 1969); Pharmaceutical Mfrs. Ass'n v. Finch, 307 F.

Supp. 858 (D. Del. 1970); National Motor Freight Traffic Ass'n v. United States, 268 F.

Supp. 90 (D.D.C. 1967) (three judge court), aff'd mem., 393 U.S. 18 (1968).
139
268 F. Supp. 90 (D.D.C. 1967) (three judge court), aff'd mem., 393 U.S. 18 (1968).

U0
Id. at 97.

141
469 F.2d 478 (2d Cir. 1972).

u2
Id. at 482.

143Compare the district court's opinion at 337 F. Supp. 1289 (S.D.N.Y. 1972) with

that of the court of appeals at 469 F.2d 478 (2d Cir. 1972).
xuSee notes 115-19 supra and accompanying text.



898 INDIANA LAWREVIEW [Vol. 15:875

of Chemical Specialties Manufacturers Association v. EPA,1 *5 the
court was explicit in explaining its evasion of this issue. In review-
ing a rule that required pesticide companies to provide certain infor-

mation on EPA-approved pesticides, the court found that the rule

did not create any new substantive obligations because it had "no in-
dependent legal effect." 146

Although most cases following the legal effect test or a substan-

tial impact analysis do not properly consider this criterion, in two
recent cases the Court of Appeals for the District of Columbia has

set out certain guidelines to distinguish when an agency action
creates a new duty and when an agency action is truly an interpre-
tation of an existing duty. In Citizens to Save Spencer County v.
EPA,U1 the court reviewed rules issued by the EPA that sought to
reconcile inconsistent provisions of the Clean Air Act and found that

the rules created new rights and obligations. 148 The court found that
the agency action created law because the result of the agency ac-

tion "by no stretch of the imagination could have been derived by

mere 'interpretation' of the instructions of Congress." 149 The next
year, the court emphasized this test in Chamber of Commerce of the
United States v. OSHA 150 when it found that an OSHA requirement
for employees' walkaround pay created a new duty. The court
reviewed the statutory language regarding employee compensation

for time spent with OSHA inspectors and found that it neither pro-
hibited nor compelled walkaround pay.151 Thus, the court concluded

that the agency action must be more than an effect on an existing
duty.

152 When Congress has not "legislated and indicated its will" on
the issue, then the agency action creates a new duty by implement-
ing the statute.

153

2. Impact on Practical Interests. — If an agency's interpretation
of the statutory language creates no new duties and does not affect
a party's legal interests, it may nonetheless affect a party's practical
interests by altering a party's existing rights and obligations.154

When measuring the impact of the agency action, many courts have

145484 F. Supp. 513 (D.D.C. 1980).
U6
Id. at 519.

147
600 F.2d 844 (D.C. Cir. 1979).

us
Id. at 879.
m
Id.

150636 F.2d 464 (D.C. Cir. 1980).
151
Id. at 469.

152
/rf.

153
/d.

154See Committee Report, supra note 5, at 27, 99-100; Attt Gen's Manual, supra
note 27, at 30.



1982] INTERPRETIVE RULE EXEMPTION 899

ignored this practical effect on the regulated party's interests; 155 if a

rule did not create a new duty, the impact was not sufficient to re-
quire notice and comment proceedings.156 The intent of Congress,
however, was to require notice and comment when rules which in-
terpreted statutes had a substantial impact. 157 This is evident from

the original APA definition which includes an agency action that "in-
terprets" as a rule subject to notice and comment proceedings. 158

This intent is also evident in the proposed amendments to the APA
which require notice and comment proceedings for rules that have a
substantial impact on a party's practical interests.159

To determine whether an agency interpretation has a substan-
tial impact on a party's practical interests, the agency action must
have a significant, demonstrable effect on the regulated party as a

result of a dramatic change in the agency's practices or policies. It is

the dramatic change in the agency's established policy that indicates

that the agency intends to act in its legislative capacity. Moreover,

the significant effect of a dramatic change in the agency's estab-

lished policy is the type of agency action that Congress intended to

be subject to notice and comment proceedings.
The cause of the practical impact must be precisely the agency's

departure from established policy. When the change is not caused
by the agency action, the impact of the agency action itself is not

substantial enough for the rule to be considered legislative and sub-

ject to notice and comment proceedings. 160 An example of this situa-
tion would be where Congress issues a new statute and an agency
issues a contemporaneous interpretation of the new statute that had
some significant conjoint effect. If such an interpretation creates
any significant impact, the proximate cause of the impact is not the

agency but Congress itself. Therefore, the agency's action is not a

result of a dramatic change in its position and there is no indication

that the agency is acting beyond its general powers to interpret

statutory language.

A dramatic change in the agency's policy has traditionally been

™See, e.g., Gibson Wine Co. v. Snyder, 194 F.2d 329 (D.C. Cir. 1952); Continental
Oil Co. v. Burns, 317 F. Supp. 194 (D. Del. 1970).

l56See British Caledonian Airways, Ltd. v. CAB, 584 F.2d 982, 989 (D.C. Cir. 1978)
(for a rule to have the requisite substantial impact, it must have created new rights
and obligations); American President Lines, Ltd. v. Federal Maritime Comm'n, 316
F.2d 419, 422 (D.C. Cir. 1963) (regardless of the practical effect of the rule, if it is only

an interpretation, it does not have a substantial impact).
157See notes 88-96 supra and accompanying text.
158
5 U.S.C. § 551(4) (1976).

159See Regulatory Reform Act, supra note 16, § 553(b)(1)(C); Regulatory Procedure

Act, supra note 16, § 553(a)(3).
160See Treatise, supra note 12, § 7:14.



900 INDIANA LA WREVIEW [Vol. 15:875

considered a factor that will trigger the protective function for rule

making.161 In Chamber of Commerce, the court stated that "[chart-
ing changes in policy direction with the aid of those who will be af-
fected by the shift in course helps dispel suspicions of agency predis-

position, unfairness, arrogance, improper influence, and ulterior

motivation."
162 The need for notice and comment proceedings when a

dramatic change occurs was emphasized in the Senate Report
accompanying the proposed amendments to the APA. The Report
found that "rule making ... is appropriate when an agency changes
its past practice."

163

To determine whether a dramatic change has occurred, the prior
position of the agency must be examined. A dramatic change does
not occur if the interpretation makes clear the agency's position on
a statute or agency policy that was, within narrow limits, ambiguous,

inconsistent, or in need of clarification. A Revenue Ruling illustrates
the type of agency policy that is generally ambiguous and in need of

clarification. Revenue Rulings are considered to be "merely the opin-
ion of a lawyer in the agency" on specific questions regarding the

tax laws.
164 Parties affected by a Revenue Ruling are not to rely

upon the Ruling but to accept it only as the agency's interpretation

which is subject to change.165 Therefore, if an agency re-interprets

its position on a policy, the change is generally not considered to be

dramatic, despite its degree of departure. Under certain circum-
stances, however, a Revenue Ruling may become so firmly estab-
lished over a period of time that it is no longer considered ambig-

uous or unreliable.166 In that instance, if the IRS were to change its
position, the result could be a dramatic change.167

mSee Lee, supra note 22, at 1-4; Davis, supra note 22.
162636 F.2d at 470.
163Senate Report, supra note 1, at 112.
164
Stubbs, Overbeck & Assoc, v. United States, 445 F.2d 1142, 1146-47 (5th Cir.

1971).
165See Griswold, A Summary of the Regulations Problem, 54 Harv. L. Rev. 398

(1941); Krane, Levin & Javaras, Public Hearings for Private Rulings: A Dissent, 50
Taxes 160 (1972); Rogovin, The Four R's: Regulations, Rulings, Reliance and Retroac-
tivity, 43 Taxes 756 (1965); Comment, Revenue Rulings and the Federal Adminis-
trative Procedure Act, 1975 Wis. L. Rev. 1135 (1976). Generally, the agency will issue a

Revenue Ruling when it finds there are many requests for a letter ruling on similar
areas of the tax law and therefore the agency's action interprets the statute. Rogovin,

The Four R's: Regulations, Rulings, Reliance and Retroactivity, 43 Taxes 756 (1965).
mSee Eastern Ky. Welfare Rights Org. v. Simon, 506 F.2d 1278, 1291 (D. C. Cir.

1974) (Wright, J., dissenting). See also note 79 supra.
187See Senate Report, supra note 1, at 113. "It is conceivable that a rule, of a

type usually considered interpretive, may in certain circumstances have the kind of
substantial impact on rights or obligations which remove it from the ambit of this
modified exemption for interpretive rules." Id.



1982] INTERPRETIVE RULE EXEMPTION 901

When the agency's well-established position is changed, the in-
terests of those who have complied with the old policy as well as
those who must comply with the new policy must be considered in
determining whether a dramatic change has occurred. In Burroughs
Wellcome Co. v. Schweiker,us a recent Fourth Circuit case, the court
of appeals reviewed a challenge to an FDA regulation that allowed
a new drug applicant to demonstrate the drug's safety and effec-
tiveness with scientific literature compiled by manufacturers of
previously approved and marketed drugs. In determining that the
change was not dramatic, the court considered the impact of the
agency action on only future applicants. 169 The court failed to con-
sider the effect of this change on the competitive position of past ap-

plicants who had published scientific material on approved drugs
because of their reliance on the past method that required each ap-
plicant to do its own scientific research.170

In addition to creating a dramatic change in a party's practical

interests, an agency interpretation must have a demonstrable effect
on the regulated parties to create a substantial impact. How to
measure the effect of an agency's action on a party's practical in-
terests is difficult to determine because, as the Senate Report notes,

"[ajctual impact obviously varies from case to case." 171 However, cer-
tain boundaries premised on the purpose of the exemption have

been established by case law.

The impact of a rule that necessitates notice and comment pro-
ceedings must not be so great that adversely affected parties are
left with no protection from agency action. The Court of Appeals for
the District of Columbia noted in Chamber of Commerce of the
United States v. OSHA, that the rule making requirements of the
APA should not be treated as meaningless ritual because rule mak-
ing procedures "as a practical matter, may constitute an affected
party's only defense mechanism." 172 On the other hand, the impact of
an interpretive rule should not be restricted to the effect of "an in-

ternal agency housekeeping arrangement." 173

The balance achieved by an optimal test must not only serve the
public's needs but also be sensitive to the agency's situation. In Bat-

terton v. Marshall,114 a recent District of Columbia Circuit case, the

Department of Labor claimed that if the impact of any routine agen-

168649 F.2d 221 (4th Cir. 1981).
m
Id. at 224-25.

™Id.
171Senate Report, supra note 1, at 113.
172636 F.2d 464, 470 (D.C. Cir. 1980).
173Energy Consumers v. Department of Energy, 632 F.2d 129, 139 (Temp. Emer.

Ct. App. 1980).
174
648 F.2d 694 (D.C. Cir. 1980).



902 INDIANA LA WREVIEW [Vol. 15:875

cy correction or refinement of agency technique were sufficient to
require notice and comment proceedings, the burden on the agencies
would be overwhelming.175 Thus, to achieve a proper balance be-

tween these conflicting needs, the scale must be able to determine
when the impact of a rule on a party's practical interests is substan-
tial enough to require notice and comment proceedings; yet, the test
should not destroy the incentive to disclose agency opinions by requir-

ing notice and comment for every agency action.
Although the degree of impact that amounts to a significant ef-

fect will always vary, some of the factors that should be considered
in measuring the impact of an agency's interpretation can be

isolated. One factor is the agency's treatment of the rule. While the
label the agency gives a rule is not dispositive in classifying a rule,

it does indicate what type of rule the agency intended to issue.176

Other agency actions may give more concrete indications of the ef-
fect the agency intended the rule to have on the regulated parties.

For example, if the agency enforces the rule by withholding a

benefit or imposing a penalty on the regulated party, that would in-

dicate that the agency intended to issue a rule with the conse-

quences of a legislative rule.177

Another factor to be considered is the competitive pressure to
comply with the agency ruling. As agency regulations pervade the
marketplace and the cost of litigation continues to climb, many af-
fected parties may not be able to afford to resist compliance. In ad-
dition to the pressure to comply, the cost of compliance should be

considered. This cost may not always be monetary because of the
variety of agencies and the diverse areas of regulation. In Joseph v.

United States Civil Service Commission, 118 the Court of Appeals for

the District of Columbia considered the cost to federal employees of

nonparticipation in partisan elections caused by a Civil Service rule

that excluded those federal employees from an exemption to the

Hatch Act.179 The cost of the agency action may not be explicit, but
whatever cost is imposed on affected parties should be considered in

determining whether the agency action has a substantial impact.

There are certain factors that many courts have weighed in an
erroneous assessment of the impact created by an agency's inter-

pretation.
180 The most prominent error is to look to the legal effect

115
Id. at 710 n.91 (citing Brief for Appellee at 28).

™See Chamber of Commerce, 636 F.2d at 468.
lll
See, e.g., Chrysler Corp. v. Brown, 441 U.S. 281, 312-16 (1979); Morton v. Ruiz,

415 U.S. 199 (1974).
178
554 F.2d 1140 (D.C. Cir. 1977).

™Id. at 1152-53.
180
See, e.g., Chemical Specialties Mfrs. Ass'n, 484 F. Supp. 513 (considering the



1982] INTERPRETIVE RULE EXEMPTION 903

of a rule as an indication of the impact of the agency action. 181 The
legal effect of a rule is a consequence of a rule that only follows

after the classification has been made.182 Therefore, if a court weighs

the legal effect when determining the impact of the agency action,
the court is only considering the consequence of a valid legislative

rule and not reaching the primary question of the characteristic of

the rule.

Another error in analysis, resulting from the confusion of
characteristics with consequences, occurs when the court considers
the weight given the rule in adjudicatory proceedings. A legislative
rule is traditionally accorded the same deference as a statute, 183

while an interpretive rule is given certain weight as authority but is

not considered binding on the court. 184 With the difficulty in
distinguishing an interpretive rule from a legislative rule, some
courts have given the same deference to interpretive rules as to
legislative rules.

185 As a result, certain courts see this trend as giv-
ing interpretive rules a certain "legal effect" and creating a need for

notice and comment proceedings. 186 This conclusion, like the legal ef-
fect test, is erroneous because the weight a court should give a

rule can be measured only after a court determines whether the
rule is interpretive or legislative.

V. Conclusion

The proposed amendments to the interpretive rule exemption of-
fer an opportunity to reevaluate this exemption and to clear the con-

fusion that has existed since the creation of the interpretive rule ex-

emption. This Note advocates a definitional approach to the applica-

tion of the exemption. To achieve a definitional application, this
Note proposes a series of analytical steps based on the two fun-

correctness of the agency's interpretation rather than the impact of the rule); Gibson

Wine Co. v. Snyder, 194 F.2d 329 (looking to the legal effect as the impact of the rule).
mSee notes 115-19 supra and accompanying text.
™See id.
mSee Committee Report, supra note 5, at 99-100.
184
Id. The weight to be given an interpretive rule was set out in the leading case

of Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). The Court in Skidmore held that
the weight to be given to the agency's interpretive rule will depend upon the

thoroughness of the agency's consideration of the issues, the validity of the agency's

reasoning, the consistency of the results with prior and subsequent pronouncements,

and other factors which make the agency's opinion persuasive, even if not controlling.

Id.
mSee Asimow, supra note 23, at 561-64.
1M
See, e.g., American Bancorporation v. Federal Reserve System, 509 F.2d 29 (8th

Cir. 1974); Shell Oil Co. v. FPC, 491 F.2d 82 (5th Cir. 1974); Gibson Wine Co. v. Snyder,

194 F.2d 329 (D.C. Cir. 1952).



904 INDIANA LAW REVIEW [Vol. 15:875

damental distinctions between an interpretive rule and a legislative

rule: the source of the agency's authority in issuing the rule, and the

impact of the rule on the party's interests. Following the proposed

analysis will result in the classification of an agency action as an in-

terpretive rule or as a legislative rule. Once this classification is

made, the interpretive rule exemption is then applied to those rules

which are defined as interpretive. The definitional approach outlined
in this Note would create a stable atmosphere for the application of

the interpretive rule exemption and achieve the purposes for the

creation of the interpretive rule exemption.

Because the ambiguity in a statute is often disproportionately

related to the confusion it may cause, it is also advisable that the
proposed amendment to the interpretive rule exemption be further
clarified by including a definition for interpretive rule under section

551 of the APA. An interpretive rule could be defined as "an agency
interpretation, promulgated under the agency's general powers,

which does not create legal rights or substantially alter the existing

rights or obligations of persons outside the agency." This language

could more clearly convey the congressional intent to require notice
and comment proceedings for agency action that has a substantial
impact, yet to exempt agency action that is actually interpretive.
Furthermore, it would provide a clear guideline to the agencies and

courts in determining when the exemption from notice and comment
proceedings is available for interpretations issued by the agencies.

Anne Slaughter