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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