Class 20: Policy Statements, Guidance, and Interpretive Rules
Can agencies make rules without engaging in rulemaking? It turns out that the choice agencies have to make policy in adjudication rather than through rulemaking is not the only way in which policy can get made without the notice and comment process. How should we think about the escape valves in APA § 553 that permit agencies to forgo informal rulemaking procedures when issuing “guidance” or “interpretive rules”?
Reading:
Pacific Gas & Electric v. FPC (810-31)
Hoctor v. Dept. of Agriculture (844-55)
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