Non-Legislative Rules (Interpretive Rules and Policy Statements)
Rule
Non-legislative rules — interpretive rules and general statements of policy — are exempt from APA § 553 notice-and-comment procedures. An interpretive rule sets out the agency’s understanding of what existing law requires; a policy statement announces the agency’s enforcement priorities. Both may be rescinded or modified without notice-and-comment (Perez v. Mortgage Bankers Ass’n, 2015).
Elements / Test
Several competing tests determine whether a rule is legislative (requiring notice-and-comment) or non-legislative:
- Legal effects test (Pacific Gas & Electric, 1974): If the agency relies on the rule as binding law in subsequent adjudications, it has legal effect and is a legislative rule.
- American Mining Congress three-part test (D.C. Cir. 1993): A rule is legislative if:
- It is a necessary predicate for an enforcement action (not merely advisory);
- The agency has published it in the CFR (reserved for rules with general applicability and legal effect); or
- It amends a prior legislative rule.
- Substantial effects test: If the rule substantially affects regulated parties even if labeled non-legislative — mostly rejected after Vermont Yankee.
- Ex post application test (U.S. Telephone Ass’n): A policy statement consistently applied to hundreds of cases becomes a legislative rule.
- Anti-evasion principle: An agency should not declare a rule interpretive or a policy statement merely to evade § 553.
Exceptions
- Interpretive rules may receive Skidmore deference (not Chevron) unless promulgated through notice-and-comment.
- Agencies may change interpretive rules without notice-and-comment (Perez), but courts may find this arbitrary under § 706.
Policy
- Preserves agency flexibility to give guidance quickly.
- Trade-off: non-legislative rules receive less judicial deference (Skidmore, not Chevron) and can be changed without public process.
- Perez overruled the D.C. Circuit’s Paralyzed Veterans doctrine, which had required notice-and-comment before significantly revising interpretive rules.
Key Cases
- Perez v. Mortgage Bankers Ass’n — agency may revise interpretive rules without notice-and-comment
- American Mining Congress v. MSHA — three-part test for when a rule is legislative