'Well, you want the permit, don't you?': Agency efforts to make nonlegislative documents bind the public

Article Abstract:

Statements of policy and interpretations of rules issued under the Administrative Procedure Act differ from legislative rules in that they are not legally binding. These issuances can be binding in practice even if they do not have the force of law behind them. Nonlegislative rules are abused when enforcement action and action on applications are based on them. If, in the course of judicial review, evidence emerges that the agency intended to bind the public with a rule, it should be rejected unless it is legislative.

Analysis, Administrative procedure

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A primer on nonlegislative rules

Article Abstract:

The author provides an overview of the nature of nonlegislative rules, and legal issues related to such rules. Topics include the substantial impact test, the legally binding test, general policy statements, and the availability of judicial review.

Powers and duties

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Three settings in which nonlegislative rules should not bind

Article Abstract:

The author outlines circumstances under which government guidances, advisories, opinion letters, bulletins, inspection manuals and press releases effectively bind persons outside the agency in a practical, as opposed to legal, sense.

Practice

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