Brooklyn Law Review


Section 553 of the APA requires public “notice-and-comment” before a federal agency issues substantive rules and exempts from these procedures guidance documents that merely offer nonbinding insight and assistance on existing law. The problem of federal agencies using the notice-and-comment exemption to issue legislative rules that are legally binding has garnered considerable attention. Congressional efforts to amend the APA in response have failed and, in turn, variations have been offered on a seemingly simple fix—mandate or encourage agencies to solicit public input before issuing guidance documents. This note characterizes these proposals as overlays on the § 553(b)(A) exemption. The note offers new empirical evidence of the benefits and trade-off of the overlay approach through a case study of a preadoption notice-and-comment mandate for binding guidance documents that Congress enacted for the Federal Transit Administration in 2005. The case study demonstrated that overlays cannot fully address the root problem of agencies circumventing notice-and-comment for binding rules so long as the § 553(b)(A) exemptions remains law. This note calls for Congress to replace the APA exemption with clear direction to agencies on the appropriate circumstances for issuing rules without notice-and-comment and offers four suggestions for such a replacement provision: (1) exempt documents based on their practical impacts, (2) define the characteristics and limits of exempt documents, (3) allow the public to petition an agency to reconsider its designation of a document as exempt, and (4) add teeth to address noncompliance.