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41 B.C. L. Rev. 153 (1999-2000)
Another Reason to Reform the Federal Regulatory System: Agencies' Treating Nonlegislative Rules as Binding Law

handle is hein.journals/bclr41 and id is 165 raw text is: ANOTHER REASON TO REFORM THE FEDERAL REGULATORY SYSTEM: AGENCIES' TREATING NONLEGISLATIVE RULES AS BINDING LAW Abstract: This Note analyzes the nonlegislative rule exception to the rulemaking requirements of the Administrative Procedure Act (APA). To lend greater accountability to federal agencies, the APA places an obligation on agencies to incoporate public input when creating new rules. Agencies, howeve, can avoid consideing public commentary through a vague exception: section 553(b)(A) of the APA. After analyzing section 553(b)(A), this Note evaluates how one agency, the Food and Drug Administration, has responded to the confusion surrounding the exception. Finally, this Note considers how the Senate has overlooked problens associated with section 553(b)(A) in the Senate's most recent bill to revise administrative procedures. INTRODUCTION Congress creates administrative agencies to execute many of the statutes it enacts. When establishing an agency, Congress grants it sev- eral powers, such as the authority to perform investigations, to con- duct adjudications and, most pertinent to this Note, to adopt rules. Generally, agencies create two types of rules: legislative rules and non- legislative rules. Legislative rules, better known as regulations, have the force of law. The government and the public must conform to the dictates of legislative rules, as if they were statutes. Conversely, non- legislative rules lack the force of law. Rather, they represent recom- mendations and advice. Nonlegislative rules have innumerable syno- nyms, such as interpretative rules, statements of policy, rules of agency organization and guidelines. Congress briefly addresses legislative and nonlegislative rules in the Administrative Procedure Act (APA').' In 1946, Congress passed the APA to foster clarity, uniformity and public participation in the 1SceAdministrative Procedure Act, 5 U.S.C. § 553 (1994). 153

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