By Lisa Soronen

Interpretive and substantive rules. What is the difference? 

Under the Administrative Procedures Act (APA), substantive regulations interpret statutes and federal agencies adopt them only after notice-and-comment. Interpretive rules are promulgated without notice and comment. But what if an agency changes an interpretive rule? Should it first seek notice and comment? The U.S. Supreme Court will decide this issue in Perez v. Mortgage Bankers Association. 

The State and Local Legal Center (SLLC) argues "Yes" in its amicus brief, which agrees with the lower court that significant changes to an interpretation of a regulation amounts to effectively changing the regulation, which requires notice and comment. 

In 2006, the Department of Labor (DOL) issued an opinion letter stating that mortgage loan officers who work more than 40 hours a week were exempt from overtime under the Fair Labor Standards Act. In 2010 DOL withdrew the opinion letter in an “Administrator’s Interpretation” that reached the opposite conclusion. 

Since 1997, the D.C. Circuit’s rule has been that if an interpretive rule is definitive and an agency makes a significant change to it, the agency must first conduct notice-and-comment rulemaking.  

State and local governments often regulate in the same space as federal agencies and are often regulated by federal agencies.

The SLLC’s amicus brief argues that requiring notice and comment for significant changes to interpretations of regulations will maintain the balance between agency discretion and reliance interests the APA was designed to protect. It also argues that allowing state and local governments to weigh in on problematic interpretations is far more efficient than state and local governments challenging them through litigation. And allowing greater state and local participation in the process will avoid or at least limit the risk to federalism posed by ever-expanding agency authority.

The SLLC’s brief discusses a number of examples where federal agencies have changed positions in interpretive rules. In 1993, DOL issued a series of opinion letters concluding that career firefighters who volunteered their services to private organizations had to be paid extra by whatever public entity employed them. 

DOL then changed its mind in 2001. And in a 2011 guidance letter the Environmental Protection Agency disallowed wastewater discharge “mixing zones,” while regulations previously allowed them. This guidance letter was successfully challenged in the 8th U.S. Circuit Court of Appeals in Iowa League of Cities v. EPA. 

Lisa Soronen is the executive director of the State and Local Legal Center and writes frequently for the NCSL blog about the U.S. Supreme Court.