Legislative rules, nonlegislative rules, and the perils of the short cut

Yale Law Journal

Volumn 120, Issue 2, 2010, Pages 276-326

  Franklin, David L ^a  

^a DEPAUL UNIVERSITY   (United States)

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EID: 78650238563     PISSN: 00440094     EISSN: None     Source Type: Journal    
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References (260)

1. 5 U.S.C. §§ 553(b)-(c) (2006).
2. Id. § 553(b)(A).
3. See infra notes 46-50.
4. Even under this approach, there might still be exceptions. A rule subject to the APA but enacted without notice and comment could still be given legal effect if it dealt with an exempt subject matter such as military or foreign affairs, 5 U.S.C. § 553(a) (2006), or if the agency could show good cause for dispensing with notice and comment, id. § 553(b)(B). And an agency might choose to conduct notice and comment while making clear that the resulting rule is nonbinding. These additional possibilities are discussed infra text accompanying notes 161-163.
5. I say "almost always" because there can occasionally be dispute about whether notice-andcomment procedures were complied with, or whether noncompliance constituted harmless error. See, e.g., Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 174-76 (2007) (considering and rejecting the argument that the Department of Labor's notice-andcomment process was inadequate); U.S. Telecom Ass'n v. FCC, 400 F.3d 29 (D.C. Cir. 2005) (holding that an FCC order setting conditions under which wireline telecommunications carriers were required to transfer telephone numbers to wireless carriers was a legislative rule but that the agency's failure to follow notice and comment was harmless error).
6. See E. Donald Elliott, Re-Inventing Rulemaking, 41 DUKE L.J. 1490, 1491 (1992).
7. Id. The D.C. Circuit has taken notice of this argument. See Am. Mining Cong. v. Mine Safety &Health Admin.,995 F.2d 1106, 1111 (D.C. Cir. 1993).
8. 533 U.S. 218 (2001).
9. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
10. See Jacob E. Gersen, Legislative Rules Revisited, 74 U. CHI. L. REV. 1705, 1720-21 (2007).
11. See infra text accompanying notes 161-182.
12. See infra text accompanying notes 183-209.
13. See infra text accompanying notes 210-223.
14. See infra text accompanying notes 226-235.
15. See infra text accompanying notes 236-240.
16. See infra text accompanying notes 241-248.
17. 5 U.S.C. § 551(4) (2006). The definition is broad in more ways than one. For instance, the phrase "general or particular applicability," if taken literally, would suggest that case-specific orders also count as rules. Id. (emphasis added). This suggestion is put to rest, however, by the APA's definitions of "order" as "the whole or part of a final disposition. of an agency in a matter other than rule making," id. § 551(6), and of "adjudication" as "agency process for the formulation of an order," id. § 551(7).
18. Other, more specific statutory and regulatory provisions may supplement or supersede the techniques set forth in the APA. Id. § 559.
19. Id. §§ 553(c), 556, 557; see United States v. Fla. E. Coast Ry. Co., 410 U.S. 224 (1973).
20. 5 U.S.C. § 553(b)(3).
21. Id. § 553(c).
22. Id.
23. See, e.g., HBO, Inc. v. FCC, 567 F.2d 9, 35-36 (D.C. Cir. 1977); O'Donnell v. Shaffer, 491 F.2d 59, 62 (D.C. Cir. 1974); Int'l Harvester Co. v. Ruckelshaus, 478 F.2d 615, 649 (D.C. Cir. 1973); Auto. Parts &Accessories Ass'n v. Boyd, 407 F.2d 330, 338 (D.C. Cir. 1968).
24. Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519 (1978).
25. Id. at 524.
26. Id. at 546.
27. For a helpful chart assembling more than one hundred prerequisites to "informal" rulemaking, see Mark Seidenfeld, A Table of Requirements for Federal Administrative Rulemaking, 27 FLA. ST. U. L. REV. 533 (2000).
28. See, e.g., Unfunded Mandates Reform Act, 2 U.S.C. §§ 1531-38, 1571 (2006); Regulatory Flexibility Act, 5 U.S.C. §§ 601-12 (2006); Truth in Regulating Act of 2000, 5 U.S.C. §§ 801-08 (2006); National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-47 (2006); Paperwork Reduction Act, 44 U.S.C. §§ 3501-21 (2006).
29. Exec. Order No. 12,866, 58 Fed. Reg. 51,735 (Sept. 30, 1993) (requiring regulatory impact analyses and OMB review); see Exec. Order No. 13,132, 64 Fed. Reg. 43,255 (Aug. 4, 1999) (requiring a "federalism summary impact statement" for certain rules); Exec. Order No. 12,630, 3 C.F.R. 554 (1988) (requiring analysis and record-keeping for rules affecting private property).
30. See, e.g., Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227 (D.C. Cir. 2008) (holding that the agency had violated the APA by not disclosing studies relied upon by agency staff in promulgating rule); Chamber of Commerce v. SEC, 443 F.3d 890, 901-06 (D.C. Cir. 2006) (interpreting § 553's requirements to mean that agencies must articulate the content and basis of proposed legislative rules with enough detail to permit meaningful comment and objections); Int'l Union, United Mine Workers v. Mine Safety &Health Admin., 407 F.3d 1250, 1259 (D.C. Cir. 2005) (same); Am. Med. Ass'n v. Reno, 57 F.3d 1129, 1132-33 (D.C. Cir. 1995) (same); see also CSX Transp., Inc. v. Surface Transp. Bd., 584 F.3d 1076, 1079-82 (D.C. Cir. 2009) (holding that the agency violated the APA because its final rule was not a logical outgrowth of its proposed rule). For a discussion of "hard look" review, see infra text accompanying notes 217-221.
31. For commentary criticizing this development, see, for example, Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 DUKE L.J. 1385 (1992); and Richard J. Pierce, Jr., Seven Ways To Deossify Agency Rulemaking, 47 ADMIN. L. REV. 59 (1995). For critiques of the critics, see, for example, William S. Jordan, III, Ossification Revisited: Does Arbitrary and Capricious Review Significantly Interfere with Agency Ability To Achieve Regulatory Goals Through Informal Rulemaking?, 94 NW. U. L. REV. 393 (2000); and Mark Seidenfeld, Why Agencies Act: A Reassessment of the Ossification Critique of Judicial Review, 70 OHIO ST. L.J. 251 (2009).
32. Coinage of the term "ossification" has been credited to Donald Elliott. See McGarity, supra note 31, at 1386 n.4 (citing E. Donald Elliott, Remarks at the Duke University School of Law Symposium: Assessing the Environmental Protection Agency After Twenty Years: Law, Politics, and Economics (Nov. 15, 1990)).
33. See COMM. ON GOV'T REFORM, 106TH CONG., NON-BINDING LEGAL EFFECT OF AGENCY GUIDANCE DOCUMENTS, H.R. REP. NO. 106-1009, at 9 (2000) ("[A]gencies have sometimes improperly used guidance documents as a backdoor way to bypass the statutory notice-andcomment requirements for agency rulemaking and establish new policy requirements."); Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 3432, 3432 (Jan. 25, 2007) [hereinafter Guidance Practices Bulletin] ("Because it is procedurally easier to issue guidance documents, there also may be an incentive for regulators to issue guidance documents in lieu of regulations."); Todd D. Rakoff, The Choice Between Formal and Informal Modes of Administrative Regulation, 52 ADMIN. L. REV. 159, 166 (2000) (asserting that agencies are "avoiding 'ossification'. by increased use of 'interpretative rules' and 'policy statements'").
34. Connor N. Raso, Note, Strategic or Sincere? Analyzing Agency Use of Guidance Documents, 119 YALE L.J. 782 (2010).
35. Guidance documents undoubtedly serve several useful purposes, as described infra text accompanying notes 146-150.
36. 5 U.S.C. § 553(a)(1) (2006).
37. Id. § 553(a)(2).
38. Id. § 553(b)(A).
39. Id.
40. Id. § 553(b)(B).
41. See, e.g., Guidance Practices Bulletin, supra note 33, at 3432 (noting that guidance documents are exempt from many procedures required for legislative rules); Raso, supra note 34, at 785 n.3 ("Guidance documents are exempt from executive orders and statutes governing the issuance of legislative rules ."). Some procedural requirements continue to apply to rules that are exempt from notice and comment. For instance, any rule upon which an agency relies when dealing with the public must be published in the Federal Register. See 5 U.S.C. § 552(a)(1) (2006). In addition, in 2007 President George W. Bush for the first time mandated OMB review of some nonlegislative rules. See Exec. Order No. 13,422, 72 Fed. Reg. 2763 (Jan. 18, 2007). Although this Executive Order was revoked in the early days of the Obama Administration, see Exec. Order No. 13,497, 74 Fed. Reg. 6113 (Jan. 30, 2009), OMB has indicated that it will continue to review significant guidance documents. See Memorandum from Peter R. Orszag, Dir., Exec. Office of the President, Office of Mgmt. &Budget, to Heads and Acting Heads of Exec. Dep'ts &Agencies (Mar. 4, 2009), available at http://www.whitehouse.gov/omb/assets/memoranda_fy2009/m09-13.pdf. In addition, the OMB's Guidance Practices Bulletin requires notice and comment for any "economically significant guidance document," defined as guidance that "may reasonably be anticipated to lead to an annual effect on the economy of $100 million or more or adversely affect in a material way the economy or a sector of the economy." Guidance Practices Bulletin, supra note 33, at 3439-40. Finally, Congress has required the FDA to solicit public input before issuing guidance documents. FDA Modernization Act, 21 U.S.C. § 371(h)(1) (2006). But see Nina A. Mendelson, Regulatory Beneficiaries and Informal Agency Policymaking, 92 CORNELL L. REV. 397, 401 (2007) ("With the exception of these FDA procedures, however, no other statute requires procedures for agency guidance documents.").
42. 5 U.S.C. § 553(b)(A). The APA uses the word "interpretative," but in keeping with most other commentators I dispense with the extra syllable and use the word "interpretive."
43. See, e.g., Mendelson, supra note 41, at 399 ("Guidance documents can closely resemble legislative rules, leading some to call them 'nonlegislative rules.'"). This Article uses the terms "guidance documents" and "nonlegislative rules" interchangeably.
44. TOM C. CLARK, U.S. DEP'T OF JUSTICE, ATTORNEY GENERAL'S MANUAL ON THE ADMINISTRATIVE PROCEDURE ACT 30 n.3 (1947) [hereinafter 1947 MANUAL]. The Supreme Court has often looked to the 1947 Manual for guidance in interpreting the APA. See, e.g., Dir., Office of Workers' Comp. Programs v. Newport News Shipbuilding &Dry Dock Co., 514 U.S. 122, 126-27 (1995); Chrysler Corp. v. Brown, 441 U.S. 281, 302 n.31 (1979); Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 546 (1978).
45. Even the terminology has been the subject of some struggle. Robert Anthony has repeatedly argued that the term "legislative rules" should be reserved for rules that have actually been promulgated in accordance with statutory requirements, such as notice and comment, for making rules that carry the force of law. See, e.g., Robert A. Anthony, A Taxonomy of Federal Agency Rules, 52 ADMIN. L. REV. 1045, 1046 (2000). In a limited terminological sense, then, Anthony adopts the premise of the short cut: rules enacted with notice and comment are legislative rules by definition, and that is that. In a more important sense, however, Anthony firmly rejects the short cut, because he urges courts to reject on procedural grounds what he calls "spurious rules," which have practical binding effect but were not promulgated pursuant to legislative rulemaking procedures. Id. at 1048. Anthony recognizes, however, that many courts continue to use the term "legislative rules" as this Article does: to describe rules that are legally required to undergo statutory procedures such as notice and comment, whether or not such procedures were actually used. See, e.g., Robert A. Anthony, "Interpretive" Rules, "Legislative" Rules and "Spurious" Rules: Lifting the Smog, 8 ADMIN. L.J. AM. U. 1, 2-3 (1994).
46. Am. Hosp. Ass'n v. Bowen, 834 F.2d 1037, 1046 (D.C. Cir. 1987).
47. Chisholm v. FCC, 538 F.2d 349, 393 (D.C. Cir. 1976).
48. Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 946 (D.C. Cir. 1987).
49. Id.
50. Noel v. Chapman, 508 F.2d 1023, 1030 (2d Cir. 1975). These exemplary quotations are drawn from Richard J. Pierce, Jr., Distinguishing Legislative Rules from Interpretative Rules, 52 ADMIN. L. REV. 547, 547-48 (2000).
51. Pierce, supra note 50.
52. See Michael Asimow, Nonlegislative Rulemaking and Regulatory Reform, 1985 DUKE L.J. 381, 389-90 (proposing an "Agency's Label" test and collecting illustrative cases); see also Warshauer v. Solis, 577 F.3d 1330, 1337 (11th Cir. 2009) ("[A]lthough not dispositive, the agency's characterization of the rule is relevant ."); SBC, Inc. v. FCC, 414 F.3d 486, 495 (3d Cir. 2005) ("[A]n agency's determination that 'its order is interpretative,' and therefore not subject to notice and comment requirements, 'in itself is entitled to a significant degree of deference.'" (quoting Viacom Int'l, Inc. v. FCC, 672 F.2d 1034, 1042 (2d Cir. 1982))). The Supreme Court seemed to reject the agency's label test in Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 171-73 (2007), in which it concluded that a rule promulgated via notice and comment was legally binding even though it was included in part of a document entitled "Interpretations." Long Island Care at Home does not adopt the short cut, however: the Court's reasons for concluding that the rule was legislative were not limited to the presence of notice and comment. Id.
53. See, e.g., Cent. Tex. Tel. Coop., Inc. v. FCC, 402 F.3d 205, 214 (D.C. Cir. 2005) (acknowledging that the court had previously used a substantial impact test to distinguish between legislative rules and those rules exempt from notice-and-comment requirements); Am. Transfer &Storage Co. v. ICC, 719 F.2d 1283, 1285 n.4 (5th Cir. 1983) (noting that the "relevant inquiry was. whether the rule will have a 'substantial impact' on those regulated" (quoting Brown Express, Inc. v. United States, 607 F.2d 695, 702 (5th Cir. 1979))); see also William Funk, A Primer on Nonlegislative Rules, 53 ADMIN. L. REV. 1321, 1325 (2001) (identifying "one line of cases [that] ha[s] looked at each claimed interpretive rule and assessed whether it had a substantial impact on the regulated community").
54. See, e.g., Miller v. Cal. Speedway Corp., 536 F.3d 1020, 1033 (9th Cir. 2008) ("'[I]nterpretive rules merely explain, but do not add to, the substantive law that already exists in the form of a statute or legislative rule,' whereas legislative rules 'create rights, impose obligations, or effect a change in existing law pursuant to authority delegated by Congress.'" (quoting Hemp Indus. Ass'n v. DEA, 333 F.3d 1082, 1087, (9th Cir. 2003))); Haas v. Peake, 525 F.3d 1168, 1195-96 (Fed. Cir. 2008) (holding that a rule was interpretive because it did not have the force and effect of law).
55. See Funk, supra note 53, at 1326 (stating that, in place of the substantial impact test, most courts have adopted a legal effect test, which states that "if the questioned rule is legally binding, it cannot be an interpretive rule").
56. See Ronald M. Levin, Nonlegislative Rules and the Administrative Open Mind, 41 DUKE L.J. 1497, 1506 n.42 (1992) ("Given the intimate connection between interpretation and policymaking in the administrative process, courts making this distinction can easily reach unsatisfying, perhaps unprincipled, results."); M. Elizabeth Magill, Agency Choice of Policymaking Form, 71 U. CHI. L. REV. 1383, 1435 (2004) ("Identifying the line between the creation of a new norm and the interpretation of an existing norm is a notoriously difficult enterprise and one that leaves a great deal of discretion in the hands of the court characterizing the agency's announcement.").
57. See, e.g., Hudson v. FAA, 192 F.3d 1031, 1035 (D.C. Cir. 1999) ("Since the statement does not cabin agency discretion. it has the characteristics of a policy statement.").
58. See, e.g., Colwell v. Dep't of Health &Human Servs., 558 F.3d 1112, 1128 (9th Cir. 2009) (holding a pre-enforcement procedural challenge to a policy statement to be unripe); Pub. Citizen, Inc., v. U.S. Nuclear Regulatory Comm'n, 940 F.2d 679, 683 (D.C. Cir. 1991) (same).
59. For a typical disclaimer, see 16 C.F.R. § 1.73 (2009) (presenting Federal Trade Commission interpretations of Fair Credit Reporting Act). Id. ("The interpretations are not substantive rules and do not have the force or effect of statutory provisions."). For a model disclaimer, see Guidance Practices Bulletin, supra note 33, at 3437.
60. See, e.g., Appalachian Power Co. v. EPA, 208 F.3d 1015, 1023 (D.C. Cir. 2000).
61. Gersen, supra note 10, at 1705.
62. Id. at 1719. It is not clear whether Gersen's proposal would apply to agency pronouncements classified by the agency as "general statements of policy" as well as to interpretive rules.
63. Id. at 1719 &n.83.
64. Id. at 1718.
65. I should make clear that I intend the term "short cut" not as a pejorative label but simply as shorthand for the view that courts should get out of the business of setting aside nonlegislative rules as procedurally invalid on the ground that they were really legislative rules to begin with. It should go without saying that adherents of what I call the short cut do not view their approach as an exercise in corner-cutting: they see it as a logical concomitant of the principle that agencies have discretion as to their modes of proceeding, and of the related notion that the legally binding effect of a rule should generally be a function of the procedures that generated it rather than the other way around. Nonetheless, from a judicial perspective, their approach would eliminate much of the befuddling litigation over the true nature or purpose of rules asserted to be procedurally invalid. Hence the term "short cut."
66. John F. Manning, Nonlegislative Rules, 72 GEO. WASH. L. REV. 893, 929 (2004).
67. Id. at 931.
68. Id. at 931-37. For discussion of this twist, see infra note 209.
69. Funk advocates a simple test for whether a rule is a legislative rule or a nonlegislative rule: simply whether it has gone through notice-and-comment rulemaking. [I]f an agency gives a nonlegislative rule binding legal effect, then the agency has acted unlawfully, not because the nonlegislative rule was [a procedurally] invalid legislative rule, but because the nonlegislative rule cannot have the legal effect the agency accorded it. Funk, supra note 53, at 1324-25; see also William Funk, When Is a "Rule" a Regulation? Marking a Clear Line Between Nonlegislative Rules and Legislative Rules, 54 ADMIN. L. REV. 659, 663 (2002) (restating this "simple test" and dubbing it the "notice-and-comment test").
70. See Peter L. Strauss, The Rulemaking Continuum, 41 DUKE L.J. 1463, 1467-68 (1992). Strauss stops short of advocating a pure short cut approach, arguing instead that courts should generally be reluctant to impose burdensome procedural prerequisites on interpretive rules and general statements of policy. (Strauss calls these "publication rules" because the Freedom of Information Act, 5 U.S.C. § 552 (2006), requires them to be published in the Federal Register before they may affect private parties. Id.) Like Manning, Strauss asserts that these nonlegislative rules should be accorded a legal impact comparable to that of agency adjudicatory precedent. Id. at 1472-73. See also infra note 209 (evaluating Strauss's and Manning's proposals).
71. For more recent commentary proposing a version of the short cut, see Sam Kalen, The Transformation of Modern Administrative Law: Changing Administrations and Environmental Guidance Documents, 35 ECOLOGY L.Q. 657, 694-95, 716 (2008).
72. Elliott, supra note 6, at 1490.
73. Elliott's article came in response to an article by Robert Anthony concerning the proper definition of the "general statements of policy" category, see id. at 1490 &n.1, so it did not discuss the interpretive rule category. But it is fair to assume that Elliott would apply the same analysis to that category, and the D.C. Circuit has made that assumption. See Am. Mining Cong. v. Mine Safety &Health Admin., 995 F.2d 1106, 1111 (D.C. Cir. 1993) (quoting Elliott's article in a case involving the definition of the "interpretive rule" category).
74. Elliott, supra note 6, at 1491.
75. Id.
76. Id.
77. Cmty. Nutrition Inst. v. Young, 818 F.2d 943 (D.C. Cir. 1987).
78. Id. at 945.
79. Id. at 948 ("The agency's own words strongly suggest that action levels are not musings about what the FDA might do in the future but rather that they set a precise level of aflatoxin contamination that FDA has presently deemed permissible.").
80. Id. at 948-49.
81. Id. at 952 (Starr, J., concurring in part and dissenting in part).
82. Id.
83. Judge Starr apparently did not fully embrace the short cut, as in a footnote he admitted that, in his view, the FDA's action level pronouncement "comes tantalizingly close to a substantive rule." Id. at 952 n.2.
84. Id. at 953.
85. 533 U.S. 218 (2001); see also Gersen, supra note 10, at 1720 (explaining that the concern "that the agency could avoid scrutiny on the front end by issuing policy as an interpretive rule and avoid scrutiny on the back end because of deference doctrine. is real, but its import has been significantly lessened by developments in other areas of administrative law. [such as] United States v[.] Mead Corp.").
86. Mead, 533 U.S. at 227.
87. See Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000) ("Interpretations such as those in opinion letters-like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law-do not warrant Chevron-style deference.").
88. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
89. Mead, 533 U.S. at 226-27.
90. Id. at 230.
91. Id.
92. 323 U.S. 134 (1944).
93. Id. at 140.
94. Gersen, supra note 10, at 1720-21 ("[J]udicial deference is much more likely when agency views are articulated using formal procedures like notice and comment. In the post-Mead world, an agency may still use nonlegislative rules to issue policy. But the probability of receiving judicial deference to views articulated in those rules falls substantially." (citation omitted)); see also Manning, supra note 66, at 940 (arguing that Mead helps distinguish legislative from nonlegislative rules by generally withholding Chevron deference from the latter).
95. See Gersen, supra note 10, at 1721 ("But for Mead, agencies might well make critical interpretive choices using nonlegislative rules. But after Mead, this approach to policy is implausible, or at least less attractive."); Manning, supra note 66, at 941 (suggesting that after Mead, agencies have more incentive to "shift policymaking into notice-and-comment procedures").
96. See supra notes 46-60 and accompanying text.
97. 208 F.3d 1015 (D.C. Cir. 2000).
98. Id. at 1017.
99. Id. at 1020.
100. Id.
101. Id.
102. Id. at 1023.
103. Id. at 1021.
104. Id. at 1028.
105. Compare Clean Air Act, 42 U.S.C. § 7607(d) (2006), with Administrative Procedure Act, 5 U.S.C. § 553 (2006).
106. Warshauer v. Solis, 577 F.3d 1330 (11th Cir. 2009).
107. Id. at 1332-33 (citing 29 U.S.C. § 433(a)(1) (code year omitted by the court)).
108. Id. at 1333-34.
109. Id. at 1334.
110. Id.
111. Id. at 1335-36.
112. Id. at 1338. See generally id. at 1337-38 (explaining the basis for the court's finding that the DLCs constituted an interpretive rule).
113. Id. at 1339.
114. Id. at 1340-41. On this numerical issue, Warshauer stands in contrast with Hoctor v. U.S. Department of Agriculture, 82 F.3d 165, 171 (7th Cir. 1996), discussed at length by Gersen, supra note 10, in which Judge Posner held that a rule requiring eight-foot-high enclosures for wild animals was legislative because there was no method that could reasonably be described as interpretive "by which the Department of Agriculture could have excogitated the eight-foot rule from the [pre-existing, generally worded] structural-strength regulation." At the same time, Judge Posner conceded in Hoctor that not all numerically precise regulations are for that reason legislative for APA purposes. Id. His concession is well illustrated by American Mining Congress v. Mine Safety &Health Administration, 995 F.2d 1106 (D.C. Cir. 1993), in which the D.C. Circuit upheld as interpretive (and therefore procedurally valid despite the agency's failure to perform notice and comment) an agency policy letter stating that a numerically defined x-ray reading would count as a "diagnosis" for purposes of federal mine safety reporting requirements.
115. Croplife Am. v. EPA, 329 F.3d 876, 883 (D.C. Cir. 2003) (alteration in original) (quoting Gen. Elec. Co. v. EPA, 290 F.3d 377, 382 (D.C. Cir. 2002)).
116. Sprint Corp. v. FCC, 315 F.3d 369, 374 (D.C. Cir. 2003).
117. Gen. Elec. Co., 290 F.3d at 384-85.
118. Catawba Cnty. v. EPA, 571 F.3d 20, 33-35 (D.C. Cir. 2009).
119. Ctr. for Auto Safety v. Nat'l Highway Traffic Safety Admin., 452 F.3d 798, 810 (D.C. Cir. 2006).
120. Air Transp. Ass'n of Am., Inc. v. FAA, 291 F.3d 49, 55-56 (D.C. Cir. 2002) (emphasis removed) (quoting Paralyzed Veterans of Am. v. D.C. Arena L.P., 117 F.3d 579, 588 (D.C. Cir. 1997)).
121. Am. Mining Cong. v. Mine Safety &Health Admin., 995 F.2d 1106 (D.C. Cir. 1993). As for whether a rule binds the agency in the sense that it does not leave the agency free to exercise discretion in the future, the court explained that this factor was relevant to the distinction between legislative rules and general statements of policy, not between legislative rules and interpretive rules. Id. at 1111.
122. Id. at 1109.
123. Id.
124. Id. But see Health Ins. Ass'n of Am. v. Shalala, 23 F.3d 412, 423 (D.C. Cir. 1994) (describing publication in the Code of Federal Regulations as not "anything more than a snippet of evidence of agency intent").
125. Am. Mining Cong., 995 F.2d at 1112.
126. Id. at 1109 (citing Nat'l Family Planning &Reprod. Health Ass'n v. Sullivan, 979 F.2d 227, 235 (D.C. Cir. 1992)). More recently, the D.C. Circuit has articulated a similar test for identifying legislative rules that turns on three factors: "(1) the Agency's own characterization of the action; (2) whether the action was published in the Federal Register or the Code of Federal Regulations; and (3) whether the action has binding effects on private parties or on the agency." Molycorp, Inc. v. EPA, 197 F.3d 543, 545 (D.C. Cir. 1999).
127. Am. Mining Cong., 995 F.2d at 1110.
128. Id. at 1111.
129. See, e.g., Ass'n of Am. Med. Colls. v. United States, 217 F.3d 770, 780-85 (9th Cir. 2000); Ariz. Pub. Serv. Co. v. EPA, 211 F.3d 1280, 1296-97 (D.C. Cir. 2000); Municipality of Anchorage v. United States, 980 F.2d 1320, 1323-25 (9th Cir. 1992); New Jersey v. Dep't of Health &Human Servs., No. 07-4698, 2008 WL 4936933, at 11-13 (D.N.J. 2008).
130. See, e.g., Interstate Natural Gas Ass'n of Am. v. FERC, 285 F.3d 18, 60 (D.C. Cir. 2002) (finding that the challenge to a general statement of policy was unripe, and noting that "[s]uch a characterization [as nonlegislative] comes at a price to the Commission; in applying the policy, it will not be able simply to stand on its duty to follow its rules").
131. See, e.g., Colwell v. Dep't of Health &Human Servs., 558 F.3d 1112, 1128 (9th Cir. 2009); Pub. Citizen, Inc., v. U.S. Nuclear Regulatory Comm'n, 940 F.2d 679, 683 (D.C. Cir. 1991).
132. See, e.g., Cohen v. United States, 578 F.3d 1 (D.C. Cir. 2009), reh'g en banc granted in part, opinion vacated in part, 599 F.3d 652 (D.C. Cir. 2010); Coal. for Common Sense in Gov't Procurement v. Sec'y of Veterans Affairs, 464 F.3d 1306, 1315-16 (Fed. Cir. 2006). But see Cohen, 578 F.3d at 21 (Kavanaugh, J., dissenting in part) (arguing that statutory restrictions and the ripeness doctrine "stand 'almost unyieldingly against pre-enforcement challenges to Treasury's regulations promulgated in violation of APA procedural requirements'" (quoting Kristin E. Hickman, A Problem of Remedy: Responding to Treasury's (Lack of) Compliance with Administrative Procedure Act Rulemaking Requirements, 76 GEO. WASH. L. REV. 1153, 1200 (2008))).
133. See, e.g., Military Order of the Purple Heart v. Sec'y of Veterans Affairs, 580 F.3d 1293, 1297- 98 (Fed. Cir. 2009) (holding that a new procedure for processing large claims was invalid because it was contrary to existing regulations and was not implemented through noticeand- comment rulemaking); Sprint Corp. v. FCC, 315 F.3d 369, 377 (D.C. Cir. 2003) (remanding to the FCC because it had failed to comply with notice-and-comment requirements); Croplife Am. v. EPA, 329 F.3d 876, 884 (D.C. Cir. 2003) (vacating an EPA press release because of the agency's "failure to engage in the requisite notice and comment rulemaking"); Gen. Elec. Co. v. EPA, 290 F.3d 377, 385 (D.C. Cir. 2002) (rejecting unripeness defense and vacating an EPA guidance document because of the agency's failure to engage in notice and comment); Appalachian Power Co. v. EPA, 208 F.3d 1015, 1023, 1028 (D.C. Cir. 2000) (holding that guidance was final agency action, but setting it aside because of the agency's failure to comply with notice and comment requirements imposed by the Clean Air Act).
134. See 5 U.S.C. § 704 (2006).
135. See, e.g., Nat'l Ass'n of Home Builders v. Norton, 415 F.3d 8, 13-17 (D.C. Cir. 2005) (holding that Fish and Wildlife Service and Department of Interior survey protocols concerning endangered butterfly did not constitute final agency action); Pub. Serv. Co. of Colo. v. EPA, 225 F.3d 1144, 1147-49 (10th Cir. 2000) (holding that EPA opinion letters did not constitute final agency action); Colo. Farm Bureau Fed'n v. U.S. Forest Serv., 220 F.3d 1171 (10th Cir. 2000) (holding that a Forest Service agreement addressing a state plan to introduce Canadian lynx into Colorado was not final agency action); Taylor-Callahan-Coleman Cntys. Dist. Adult Prob. Dep't v. Dole, 948 F.2d 953, 957-959 (5th Cir. 1991) (holding that a letter from the Administrator of Wage and Hour Division was not final agency action).
136. For a discussion of the conflicting case law on finality and agency guidance documents, see generally Gwendolyn McKee, Judicial Review of Agency Guidance Documents: Rethinking the Finality Doctrine, 60 ADMIN. L. REV. 371, 407 (2008).
137. See supra text accompanying notes 97-105.
138. Appalachian Power, 208 F.3d at 1023.
139. Id. at 1023 (citing Robert A. Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals, and the Like-Should Federal Agencies Use Them To Bind the Public?, 41 DUKE L.J. 1311, 1361 (1992)).
140. Id. (quoting Strauss, supra note 70, at 1485).
141. Id. at 1020, 1023.
142. See, e.g., Ctr. for Auto Safety v. Nat'l Highway Traffic Safety Admin., 452 F.3d 798, 808 (D.C. Cir. 2006) (finding agency guidelines not to be final agency action or legislative rules because they "do not determine any rights or obligations, nor do they have any legal consequences"); Nat'l Ass'n of Home Builders v. Norton, 415 F.3d 8, 15-17 (D.C. Cir. 2005); Air Brake Sys., Inc. v. Mineta, 357 F.3d 632, 635 (6th Cir. 2004) (finding that agency letters were not binding and that they did not constitute final agency action); Taylor-Callahan- Coleman Cntys. Dist. Adult Prob. Dep't v. Dole, 948 F.2d 953, 957-59 (5th Cir. 1991) (determining that opinion letters were not final agency action by examining the effect of the letters on the regulated entity and the scope of the letters).
143. See, e.g., Cement Kiln Recycling Coal. v. EPA, 493 F.3d 207, 228 (D.C. Cir. 2007) (noting that the EPA had responded to the Appalachian Power decision by adding additional disclaimers to its guidance document).
144. See infra text accompanying notes 156-157.
145. Funk, supra note 53, at 1325. Stare decisis is not a sufficient explanation for the reluctance of courts to embrace the short cut. For one thing, the Supreme Court has not spoken with any clarity about the basis for distinguishing legislative from nonlegislative rules, so all thirteen federal circuits have been free to carve their own paths. For another, the relevant case law within the circuits has been, to say the least, sufficiently unstable and protean that a court of appeals could adopt the short cut without undue violence to the already ragged fabric of the law. For citations to changing circuit precedent, see supra notes 52-60.
146. Id. at 1323 (explaining that nonlegislative rules allow "an agency to communicate its views on the law and policy to the public, especially the regulated public, on a timely basis, so that they will not be surprised by agency action"); Kalen, supra note 71, at 673 (asserting benefits to the public from technical guidance documents); Pierce, supra note 31, at 82-83 (explaining that interpretive rules "provide affected members of the public and their elected representatives a valuable source of information with respect to the policies agencies are attempting to pursue"); Strauss, supra note 70, at 1481 ("By informing the public how the agency intends to carry out an otherwise discretionary task, publication rulemaking permits important efficiencies to those who must deal with government.").
147. See, e.g., Manning, supra note 66, at 914 (noting that interpretive rules such as staff manuals and guidance documents "avoid (increasingly) cumbersome notice-and-comment procedures"); Mendelson, supra note 41, at 410 (noting that an agency issuing guidance documents can decide how much information to disclose and "is not obligated to respond to comments or to supply the 'concise statement of their basis and purpose'" (quoting 5 U.S.C. § 553(c) (2000))).
148. Mendelson, supra note 41, at 409.
149. See, e.g., Kalen, supra note 71, at 671 ("Absent such [nonlegislative] documents, agency personnel could interpret or apply a particular regulation or statute inconsistently in various regional or field offices."); Manning, supra note 66, at 914-15 ("[N]onlegislative rules potentially allow agencies to supply often far-flung staffs with needed direction ."); Mendelson, supra note 41, at 409 ("Agencies rely on handbooks, directives, and other similar guidance documents to ensure that lower-level employees complete forms correctly and make consistent (and thus more predictable) decisions."); Strauss, supra note 70, at 1482 ("Staff instructions, manuals, and other forms of publication rules are essential tools of bureaucratic management, by which the expertise of an agency is shared throughout its structure, and staff operatives are kept under the discipline necessary to the efficient accomplishment of agency mission.").
150. See, e.g., Manning, supra note 66, at 914 (explaining that interpretive rules "represent a relatively low-cost and flexible way for agencies to articulate their positions"); Pierce, supra note 31, at 83 (agencies are "free to issue, amend, or rescind all [interpretive] rules quickly, inexpensively, and without following any statutorily prescribed procedures"); Strauss, supra note 70, at 1472 (legislative rules are "expensive to [agencies'] limited resources and so conducive to frustrating their choices about how to use those resources").
151. See, e.g., Gersen, supra note 10, at 1715; Strauss, supra note 70, at 1478 n.44 (noting that any attempt to draw a line between, for example, rules that impose new legal obligations and rules that merely interpret existing obligations "can have the qualities of a shell game[, because] authorized interpretation frequently supplies judgments no one would pretend the enacting body considered" and citing Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), as an example).
152. See, e.g., Stephen M. Johnson, Good Guidance, Good Grief!, 72 MO. L. REV. 695, 735 (2007) ("[I]ncreased public participation in agency decisionmaking is more democratic and increases the legitimacy of agency decisions and public trust in the agencies.") (footnote omitted); Mendelson, supra note 41, at 424-25; Pierce, supra note 31, at 85-86.
153. See, e.g., Gen. Elec. Co. v. EPA, 290 F.3d 377, 383 (D.C. Cir. 2002) (explaining that if a nonlegislative rule "is such that private parties can rely on it as a norm or safe harbor by which to shape their actions, it can be binding as a practical matter" (quoting Anthony, supra note 139, at 1328-29)); Guidance Practices Bulletin, supra note 33, at 3435 ("[A]lthough guidance may not be legally binding,. [it] can have coercive effects or lead parties to alter their conduct."); Anthony, supra note 139, at 1328 ("A document will have practical binding effect before it is actually applied if the affected private parties are reasonably led to believe that failure to conform will bring adverse consequences, such as an enforcement action or denial of an application."); Magill, supra note 56, at 1397 ("[E]ven when the agency acts in an advisory capacity, its views have unquestionable real-world consequences."); Mendelson, supra note 41, at 407 ("[G]uidance documents often have rule-like effects on regulated entities. Regulated entities often comply with the policies announced in guidance documents, thereby alleviating the agency's burden of enforcement."); Strauss, supra note 70, at 1465 (noting that citizens can be bound when, "as a practical matter, citizens have few choices but to follow policies the government has announced").
154. It is true that the White House's Office of Management and Budget (OMB) issued a Bulletin for Agency Good Guidance Practices in 2007 directing agencies to accept comments before issuing "significant" guidance documents. See Guidance Practices Bulletin, supra note 33. But the effect of the bulletin is unlikely to be significant for several reasons. It does not obligate agencies to respond to the comments they receive; agencies that violate it are accountable only to OMB, not in court; and, outside the relatively narrow category of "economically significant guidance documents," an agency can comply without casting the net broadly, seeking comments only from a small group of regulated entities with which it has an well-established relationship. For a discussion of the shortcomings of the OMB bulletin, with particular reference to the interests of regulatory beneficiaries, see Mendelson, supra note 41, at 447-50.
155. See Johnson, supra note 152, at 695 n.1 ("In many agencies, more than ninety percent of the 'rules' are adopted through policy statements and interpretive rulemaking."); Strauss, supra note 70, at 1469 (noting that nonlegislative rules occupy many times more library shelf space than legislative ones).
156. NLRB v. Bell Aerospace Co., 416 U.S. 267, 292-94 (1974); SEC v. Chenery Corp. (Chenery II), 332 U.S. 194, 203 (1947). For further discussion of the "Chenery II principle" as it relates to nonlegislative rulemaking, see infra text accompanying notes 183-209.
157. Am. Mining Cong. v. Mine Safety &Health Admin., 995 F.2d 1106, 1112 (D.C. Cir. 1993); see also Hoctor v. U.S. Dep't of Agric., 82 F.3d 165, 167 (7th Cir. 1996) ("It would be no favor to the public to discourage the announcement of agencies' interpretations by burdening the interpretive process with cumbersome formalities.").
158. Even when standing to intervene is generously awarded, see, for example, Office of Commc'n of the United Church of Christ v. FCC, 359 F.2d 994 (D.C. Cir. 1966), adjudication does not provide as broad a framework for public participation as the APA's "interested persons" standard, 5 U.S.C. § 553(c) (2006).
159. See, e.g., Gersen, supra note 10, at 1721; Manning, supra note 66, at 945. Elliott may be an exception here, because he discounts the benefits of notice and comment quite substantially. See infra text accompanying notes 213-215.
160. One might try to argue that the short cut is unsound as a matter of statutory interpretation because § 553 of the APA contemplates that some kinds of rules simply must undergo notice and comment, while others (for example, "interpretative rules" and "general statements of policy," 5 U.S.C. § 553(b)(A)) are exempt. That statement is true, but it does not preclude the short cut. After all, nothing in the APA says that courts rather than agencies should determine which rules are exempt. The fact that pre-enforcement judicial review did not become a reality until more than twenty years after the enactment of the APA, see Abbott Labs. v. Gardner, 387 U.S. 136 (1967), argues against the notion that Congress expected courts to sort procedurally valid from procedurally invalid rules based on their text or context. So does the principle, emphasized by John Manning, that agencies have virtually unreviewable discretion in their choice of policymaking mode-a principle that predates the APA. See Manning, supra note 66, at 901-14. In short, the APA's text and history are fully consistent with the view that notice-and-comment procedures create a kind of procedural safe harbor, to be entered at the agency's option, which allows the resulting rule to be treated as legally binding. The objective of this Article is to show that such a view is pragmatically undesirable, not that it is textually untenable.
161. See supra notes 36-40 (citing categories of exempt rules).
162. See, e.g., Hudson v. FAA, 192 F.3d 1031, 1033-34 (D.C. Cir. 1999); Peter L. Strauss, Publication Rules in the Rulemaking Spectrum: Assuring Proper Respect for an Essential Element, 53 ADMIN. L. REV. 803, 821 (2001) (asserting on the basis of his own experience that agencies often solicit public comment before adopting nonlegislative rules). The Administrative Conference of the United States recommended pre-adoption notice and comment for nonlegislative rules "likely to have substantial impact on the public." 1 C.F.R. § 305.76-5 (1992).
163. See Guidance Practices Bulletin, supra note 33, at 3440.
164. 818 F.2d 943 (D.C. Cir. 1987).
165. Id. at 945.
166. See Heckler v. Chaney, 470 U.S. 821 (1985).
167. Anthony, supra note 139, at 1339.
168. Id.
169. 174 F.3d 206 (D.C. Cir. 1999).
170. See id. at 211-13.
171. See, e.g., Raso, supra note 34, at 803 (noting that agencies with "gatekeeping power," such as the FDA and FCC, can more readily induce voluntary compliance).
172. Am. Bus. Ass'n v. United States, 627 F.2d 525, 532 (D.C. Cir. 1980) (quoting United States ex rel. Parco v. Morris, 426 F. Supp. 976, 984 (E.D. Pa. 1977)).
173. See, e.g., Colwell v. Dep't of Health & Human Servs., 558 F.3d 1112, 1128 (9th Cir. 2009) (holding that a pre-enforcement challenge to HHS guidance was not ripe unless and until challengers could provide an example "of the manner in which the HHS has used the Policy Guidance-as, for example, in an enforcement proceeding against one of them"); see also Mendelson, supra note 41, at 411 (noting finality and ripeness barriers to judicial review of guidance documents).
174. See id. at 420-24.
175. See id. at 424-33; cf. Strauss, supra note 162, at 817 ("[T]hose who are the objects of regulation may welcome a publication rule, that members of the public believe [to be] inadequately protective of their interests; again, because the regulated will comply, there will never be a concrete application of the rule that could be tested on judicial review.").
176. See Mendelson, supra note 41, at 429 (noting that agencies tend to reach out to known regulated entities "as a sounding board for policy development" and to maintain good longterm relationships).
177. To be sure, even under current doctrine, deregulatory or threshold-setting rules are sometimes treated as nonlegislative, see, e.g., Warshauer v. Solis, 577 F.3d 1330 (11th Cir. 2009)-or, more questionably, not as rules at all, see Ass'n of Irritated Residents v. EPA, 494 F.3d 1027, 1031-34 (D.C. Cir. 2007) (holding EPA's agreement not to take enforcement action against animal feeding operations to be an unreviewable exercise of enforcement discretion rather than a rule). But the short cut would go much further by precluding all procedural review of such rules.
178. See supra text accompanying notes 155-157.
179. See Strauss, supra note 162, at 814.
180. See Anthony, supra note 139, at 1328; Pierce, supra note 31, at 90-91 (explaining that unless the probability of judicial invalidation of a rule is significant, a regulated party will likely comply with a rule when the cost of compliance is less than the cost of noncompliance).
181. See, e.g., Strauss, supra note 70, at 1476; see also Mark Seidenfeld, Demystifying Deossification: Rethinking Recent Proposals To Modify Judicial Review of Notice and Comment Rulemaking, 75 TEX. L. REV. 483, 489 (1997) ("[B]y using policy statements to coerce compliance with a desired standard, an agency can circumvent the safeguards the three branches of government have developed to ensure that the agency's policy is legally, economically, and politically justified.").
182. See infra Section IV.B (questioning the proposition that deference doctrines would produce substantial incentives for agencies to opt for notice and comment under a short cut regime).
183. SEC v. Chenery Corp. (Chenery II), 332 U.S. 194 (1947).
184. For what is still the most trenchant criticism of the principle, see Chenery II, 332 U.S. at 216- 18 (Jackson, J., dissenting). For a more recent critique of Chenery II, on the grounds that it is inconsistent with other aspects of modern administrative law, see Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 N.Y.U. L. REV. 461, 535-36 (2003).
185. See, e.g., Shalala v. Guernsey Mem'l Hosp., 514 U.S. 87, 96-97 (1995); NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974).
186. That is, if the targeted entity chooses to challenge the enforcement action, which is not a sure thing. See supra text accompanying notes 181-188.
187. See United States v. Mead Corp., 533 U.S. 218, 230-31 (2001) (noting that formal adjudications are entitled to Chevron deference).
188. See NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 (1969) (plurality opinion) ("Subject to the qualified role of stare decisis in the administrative process, [adjudicatory orders] may serve as precedents.").
189. I am grateful to Ron Levin for emphasizing this point in communications with me. His article, Levin, supra note 56, at 1501-02, contains a useful discussion of the nonbinding nature of agency precedent, from which the examples in the next footnote are drawn.
190. See, e.g., Jersey Cent. Power & Light Co. v. FERC, 810 F.2d 1168, 1184 (D.C. Cir. 1987) (en banc); Shell Oil Co. v. FERC, 707 F.2d 230, 235-36 (5th Cir. 1983); NLRB v. St. Francis Hosp. of Lynwood, 601 F.2d 404, 414-16 (9th Cir. 1979).
191. It should be mentioned that agency staff and attorneys sometimes overpress by treating adjudicative precedent as though it were formally binding-just as they sometimes commit the same error with respect to nonlegislative rules. See, e.g., McLouth Steel Prods. Corp. v. Thomas, 838 F.2d 1317 (D.C. Cir. 1988) (holding that because the EPA had refused to entertain objections to its policy, that policy was functioning as a legislative rule; and that, on remand, the agency must initiate notice and comment or stand ready to entertain objections to the policy); Pac. Gas & Elec. Co. v. FERC, 506 F.2d 33, 38 (D.C. Cir. 1974) ("When the agency applies the policy in a particular situation, it must be prepared to support the policy just as if the policy statement had never been issued."); Strauss, supra note 162, at 816 ("A bit more care from agency counsel about the precise source of authority an agency is claiming. could work wonders.").
192. 514 U.S. 87 (1995).
193. Id. at 90. The Secretary conceded that the guideline was not a legislative rule, so the Court had no occasion to address the baffling question of how to distinguish between legislative and nonlegislative rules.
194. Id.
195. Id. at 95.
196. Id. at 96-97.
197. Id. at 96.
198. 348 F.3d 569 (6th Cir. 2003).
199. Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (codified as amended at 42 U.S.C. § 12,101 (2006)).
200. Cinemark, 348 F.3d at 573 (quoting 28 C.F.R. pt. 36, app. A, § 4.33.3 (emphasis added and code year omitted by the court)).
201. Id. at 580.
202. Id.
203. Id. at 580 n.8.
204. Id. at 578-79.
205. Id. at 580-81.
206. For a discussion of these cases, see William D. Araiza, Agency Adjudication, the Importance of Facts, and the Limitations of Labels, 57 WASH. & LEE L. REV. 351, 365-76 (2000).
207. Indeed, John Manning relies on an analogy to Chenery II as one of the principal rationales in favor of the short cut. See Manning, supra note 66, at 901-14.
208. See, e.g., West Virginia v. Thompson, 475 F.3d 204, 209-10 (4th Cir. 2007) (relying on Chenery II in rejecting the argument that the Secretary of Health and Human Services could establish criteria defining the scope of undue hardship waivers only through notice-andcomment rulemaking).
209. John Manning and Peter Strauss have suggested versions of the short cut under which nonlegislative rules would be given precedential (or quasi-precedential) effect as opposed to no legal effect whatsoever. See Manning, supra note 66, at 934 (arguing for a "reasoned decisionmaking framework" under which "nonlegislative rules would. merit something resembling the level of obligation of an adjudicative precedent"); Strauss, supra note 162, at 843-49 (proposing a similar framework for what Strauss calls "publication rules," see id. at 804); Strauss, supra note 70, at 1467-68. To a large extent, such an approach would simply formalize the rationale employed by the Guernsey and Cinemark courts: interpretive rules would be upheld to the extent that they represented a reasonable outcome that could have been reached through adjudication. Manning's and Strauss's proposals, however, would work a change in current law in one respect: agencies would have to justify adequately any departure from a nonlegislative rule (even a general statement of policy), just as they must now justify any departure from an adjudicative precedent. This burden of adequate justification is hard to quantify, compare FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1810-12 (2009), with id. at 1830-32 (Breyer, J., dissenting), but does seem greater than the burden that agencies must currently carry in order to depart from a nonlegislative rule. This version of the short cut, while superior to the "pure" version, does little to respond to the interests of regulatory beneficiaries, see Mendelson, supra note 41, at 445-47, or to the asymmetry between pre-promulgation notice and comment and post-enforcement judicial review, see infra text accompanying notes 210-221.
210. See, e.g., Trans-Pac. Freight Conference of Japan/Korea v. Fed. Mar. Comm'n, 650 F.2d 1235, 1245 (D.C. Cir. 1980) ("[Notice-and-comment rulemaking] allows all those who may be affected by a rule an opportunity to participate in the deliberative process, while adjudicatory proceedings normally afford no such protection to nonparties."); Asimow, supra note 52, at 402 ("The APA notice and comment procedure infuses the rulemaking process with significant elements of openness, accountability, and legitimacy.").
211. Cf. Frederick Schauer, Do Cases Make Bad Law?, 73 U. CHI. L. REV. 883 (2006) (suggesting that the requirement of a concrete case distorts the development of the common law).
212. Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106, 1111 (D.C. Cir. 1993).
213. See, e.g., Elliott, supra note 6, at 1495 ("[R]eal public participation-the kind of back and forth dialogue in which minds (and rules) are really changed-primarily takes place in various fora well in advance of a notice of proposed rulemaking appearing in the Federal Register.").
214. Id. at 1492.
215. Id. at 1492-94.
216. Cf. Pierce, supra note 31, at 84 ("Because courts lack the voluminous record available as the basis for reviewing a legislative rule, it is difficult for them to detect arguable flaws in interpretative rules or in policy statements.").
217. See, e.g., Natural Res. Def. Council, Inc. v. EPA, 824 F.2d 1258, 1284-86 (1st Cir. 1987); Conn. Light & Power Co. v. Nuclear Regulatory Comm'n, 673 F.2d 525, 530-31 (D.C. Cir. 1982); United States v. Nova Scotia Food Prods. Corp., 568 F.2d 240, 252-53 (2d Cir. 1977).
218. For critical commentary on hard look review, see the sources collected in Seidenfeld, supra note 181, at 483 n.1. For the locus classicus of substantive hard look review, see Ethyl Corp. v. EPA, 541 F.2d 1, 68-69 (D.C. Cir. 1976) (Leventhal, J., concurring). For the locus classicus of procedural hard look review, see id. at 66-68 (Bazelon, J., concurring).
219. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 46-51 (1983); Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). A narrow majority in the State Farm case appeared to endorse substantive hard look review as well. See State Farm, 463 U.S. at 51-57.
220. Cf. Asimow, supra note 52, at 403 ("[B]y generating a record of public comment and agency response, the notice and comment system facilitates pre-enforcement hard-look judicial review, an important check on factually unsupported or arbitrary regulation.").
221. State Farm, 463 U.S. at 43.
222. For a (concededly inconclusive) attempt to define the circumstances under which postenforcement review is superior, see Mark Seidenfeld, Playing Games with the Timing of Judicial Review: An Evaluation of Proposals To Restrict Pre-Enforcement Review of Agency Rules, 58 OHIO ST. L.J. 85 (1997).
223. See id. at 107-08.
224. 533 U.S. 218 (2001).
225. See Gersen, supra note 10, at 1720-21; Manning, supra note 66, at 940 ("By denying Chevron deference to nonlegislative rules, the Court [in Mead] makes them nonbinding in practice. Such a default position, moreover, meaningfully distinguishes nonlegislative from legislative rules without the confusing form of inquiry that direct judicial review of that distinction has thus far entailed."). But see id. at 943 ("Mead's net effect on agency deliberation may ultimately be quite small.").
226. Mead, 533 U.S. at 231 ("[W]e have sometimes found reasons for Chevron deference even when no such administrative formality was required and none was afforded.") (citing NationsBank of N.C. v. Variable Annuity Life Ins. Co., 513 U.S. 251, 256-257, 263 (1995)).
227. See, e.g., Mead, 533 U.S. at 231 (stating that the fact that the ruling at bar "was not a product of such formal process does not alone. bar the application of Chevron").
228. 535 U.S. 212 (2002).
229. 42 U.S.C. § 423(d)(1)(A) (2006).
230. 65 Fed. Reg. 42,774 (2000).
231. Barnhart, 535 U.S. at 221-22.
232. Id. at 222.
233. See Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).
234. For an account of this confusion, see Lisa Schultz Bressman, How Mead Has Muddled Judicial Review of Agency Action, 58 VAND. L. REV. 1443 (2005). Compare Krzalic v. Republic Title Co., 314 F.3d 875, 879 (7th Cir. 2002) (noting that Barnhart "suggests a merger between Chevron deference and Skidmore's"), with id. at 882 (Easterbrook, J., concurring) ("I do not perceive [in Barnhart] any 'merger' between Chevron and Skidmore, which Mead took such pains to distinguish." (citation omitted)).
235. See, e.g., Gonzales v. Oregon, 546 U.S. 243, 258-69 (2006) (entertaining at length the possibility that an interpretive rule might be eligible for Chevron deference); Edelman v. Lynchburg Coll., 535 U.S. 106, 114 (2002) (stating that "deference under Chevron. does not necessarily require an agency's exercise of express notice-and-comment rulemaking power"); Kruse v. Wells Fargo Home Mortg., Inc., 383 F.3d 49, 59-61 (2d Cir. 2004) (applying Chevron deference to a general statement of policy issued without notice and comment); cf. Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 1004 (2005) (Breyer, J., concurring) (reading Mead as holding that "the existence of a formal rulemaking proceeding is neither a necessary nor a sufficient condition for according Chevron deference to an agency's interpretation of a statute").
236. For an early post-Mead expression of skepticism on this score, see Ronald M. Levin, Mead and the Prospective Exercise of Discretion, 54 ADMIN. L. REV. 771, 796 (2002) (doubting that the distinction between Chevron and Skidmore "is so powerful that it is likely to exert a strong influence on agency behavior," and noting that "the difference between the two standards of review is so elusive that most people can barely understand it").
237. Kristin E. Hickman & Matthew D. Krueger, In Search of the Modern Skidmore Standard, 107 COLUM. L. REV. 1235, 1259-60, 1275 (2007); see also Hickman, supra note 132, at 1200 ("[E]ven under the purportedly less deferential Skidmore review standard, judicial review of interpretations of the [Internal Revenue Code] advanced in connection with refund claim denials and deficiency notices may be quite deferential.").
238. Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).
239. See Hickman & Krueger, supra note 237, at 1276-78 (noting that comparative analysis of government success rates under Skidmore and Chevron is difficult to perform, for reasons that include selection bias, but concluding that "Skidmore is substantially more agencyfriendly than other scholars conducting post-Mead analysis have supposed"); Levin, supra note 236, at 797 n.113 (reporting anecdotally that a government attorney could remember only one instance in eleven years of agency service in which he and his colleagues even discussed eventual standards of judicial review in determining what procedures to use for rulemaking).
240. See supra text accompanying notes 213-221.
241. Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945). This form of deference is sometimes called Auer deference, after the case in which the Court reaffirmed Seminole Rock. See Auer v. Robbins, 519 U.S. 452, 461 (1997).
242. For comparative discussion of Chevron and Seminole Rock, see, for example, John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 COLUM. L. REV. 612, 627-31 (1996); and Thomas W. Merrill & Kristin E. Hickman, Chevron's Domain, 89 GEO. L.J. 833, 899-900 (2001).
243. Barnhart v. Walton, 535 U.S. 212, 217 (2002) (citing Auer, 519 U.S. at 461); see also Udall v. Tallman, 380 U.S. 1, 16-17 (1965).
244. United States v. Cinemark U.S.A., Inc., 348 F.3d 569, 578 (6th Cir. 2003).
245. See, e.g., United States v. Cleveland Indians Baseball Co., 532 U.S. 200, 220 (2001) (upholding an informal revenue ruling as an agency's reasonable interpretation of its own regulations); Miller v. Cal. Speedway Corp., 536 F.3d 1020, 1028 (9th Cir. 2008); Smith v. Nicholson, 451 F.3d 1344, 1349-50 (Fed. Cir. 2006).
246. See Auer, 519 U.S. at 461; see also Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 171 (2007) (granting Seminole Rock deference to an agency's interpretation of its own regulations set forth in an internal memorandum to agency staff that was generated in response to litigation).
247. See Appalachian Power Co. v. EPA, 208 F.3d 1015, 1020 (D.C. Cir. 2000) (noting a frequent pattern by which agencies issue vaguely worded legislative rules that they subsequently interpret through nonlegislative rules); Manning, supra note 242, at 614-15 (noting that "regulations frequently play a more direct role than statutes in defining the public's legal rights and obligations").
248. See United States v. Mead Corp., 533 U.S. 218, 246 (2001) (Scalia, J., dissenting) ("Agencies will now have high incentive to rush out barebones, ambiguous rules construing statutory ambiguities, which they can then in turn further clarify through informal rulings entitled to judicial respect.").
249. See generally Bressman, supra note 234 (demonstrating that the Supreme Court's decisions in Mead and Barnhart have sowed confusion in the courts of appeals); Adrian Vermeule, Introduction: Mead in the Trenches, 71 GEO. WASH. L. REV. 347 (2003) (arguing that Mead has led to flawed and incoherent D.C. Circuit decisions).
250. William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 GEO. L.J. 1083, 1090 (2008).
251. Id.
252. Ernest Gellhorn & Glen O. Robinson, Perspectives on Administrative Law, 75 COLUM. L. REV. 771, 780 (1975).
253. Eskridge & Baer, supra note 250, at 1096-97.
254. Appalachian Power Co. v. EPA, 208 F.3d 1015 (D.C. Cir. 2000). For discussion, see supra text accompanying notes 97-105.
255. Warshauer v. Solis, 577 F.3d 1330 (11th Cir. 2009). For discussion, see supra text accompanying notes 106-114.
256. I have written at length about this distinction elsewhere. See David L. Franklin, Facial Challenges, Legislative Purpose, and the Commerce Clause, 92 IOWA L. REV. 41 (2006); David L. Franklin, Looking Through Both Ends of the Telescope: Facial Challenges and the Roberts Court, 36 HASTINGS CONST. L.Q. 689 (2009).
257. The analogy, as stated in the text, is only a rough one: for instance, current doctrine looks beyond the face of the rule to patterns of enforcement in determining whether a rule is a general statement of policy. See supra note 131 and accompanying text.
258. Cf. Manning, supra note 66, at 933 (labeling his version of the short cut "an as-applied reasoned decisionmaking framework").
259. See generally sources cited supra note 256 (discussing the distinction between facial and asapplied challenges).
260. Id.