Supreme Court Holds Federal Agencies May Reverse Their Positions Through Informal Guidance | Faegre Baker Daniels - JDSupra

See Supreme Court Holds Federal Agencies May Reverse Their Positions Through Informal Guidance | Faegre Baker Daniels - JDSupra





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The federal Administrative Procedure Act (APA) sets the procedures that federal agencies must use for rulemaking. The APA distinguishes between legislative rules and interpretive rules. Courts give more deference to legislative rules than to interpretive rules because legislative rules are considered to have the force and effect of law, whereas interpretive rules are considered to be the agency’s construction of the statutes and rules it administers.

Under the APA, when issuing legislative rules, federal agencies must follow notice and comment procedures (i.e., they must notify the public that they intend to issue legislative rules and must provide the public with an opportunity to submit comments to the agency regarding the proposed legislative rules).  On the other hand, the APA does not require federal agencies to follow notice and comment procedures when issuing interpretive rules.

In 1997, in the Paralyzed Veterans case, the U.S. Court of Appeals for the D.C. Circuit held that, under the APA, when a federal agency wishes to issue a new interpretation of a regulation that deviates significantly from an interpretation the agency previously adopted, the agency must follow notice and comment procedures.

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