Nonlegislative Rulemaking and Regulatory Reform

The adoption of interpretive rules and policy statemens is a vital part of the administrative process. These "nonlegislative" rules clarify the language of statutes and prior rules and give structure to agency discretionary powers. Courts have encountered difficulty in distinguishing legislative from nonlegislative rules because the practical impact of both kinds of rules may be the same. Regulatory reform proposals at both federal and state levels would require agencies to employ notice and comment procedures before adopting many nonlegislative rules.

This article contends that such requirements would discourage agencies from adopting nonlegislative rules and thus would dramatically disserve the public interest.