Regulatory Dark Matter: Why Regulatory Reform Efforts Must Address Interpretive Rules
WASHINGTON (April 12, 2016) – While increased national debate surrounding regulatory reform is commendable, recent discussions have focused largely on the traditional rulemaking process that includes publication in the Federal Register and a requisite period of public comment. But a new R Street policy brief suggests that, if true reform is the goal, policymakers need a broader perspective.
Noting that reform efforts like the REINS Act and SCRUB Act focus on traditional “legislative rules,” report authors Kevin Kosar and Daniel Richardson write that “much federal regulatory activity happens outside the formal procedure these reforms presuppose.”
“This other activity has gone by many names. Agencies refer to these actions as guidance documents, ‘no action letters’ and public notices,” Kosar and Richardson write.
The belief that these “interpretive rules” are largely inconsequential is misguided, the authors contend. As Supreme Court Justice Antonin Scalia argued in an opinion penned shortly before his death: “If an interpretive rule gets deference, the people are bound to obey it on pain of sanction, no less surely than they are bound to obey substantive rules, which are accorded similar deference. Interpretive rules that command deference do have the force of law.”
In light of this reality, the authors urge a more comprehensive approach to regulatory reform that recognizes and seeks to alleviate the current lack of a unifying standard governing interpretive rules.
“Congress should take steps to move interpretive rules out of the realm of regulatory dark matter,” the authors write. “This can be done by setting government-wide standards for the formats of interpretive rules and by requiring such rules be deposited in a central, searchable online repository. Individuals and firms regulated by such guidance should be able to locate such rules, and to comment on them.”
