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 incorporate public input when creating new rules. Agencies, however; can avoid considering 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 problems associated with section 553(b)(A) in the Senate's most recent bill to revise administrative procedures.