March 10, 2015
On March 9th, 2015 the U.S. Supreme Court unanimously reversed the D.C. Circuit’s opinion on federal agency rulemaking in Perez, Secretary of Labor v. Mortgage Bankers Association, holding that federal agencies need not issue interpretive rules (issued to advise the public on an agency’s understanding and reading of the laws and rules it administers) under notice-and-comment rulemaking procedures of the Administrative Procedure Act (“APA”), regardless of whether the interpretation deviates from an interpretation the agency has previously adopted.

The Administrative Procedure Act ("APA") establishes the procedures federal agencies must use for rulemaking. In general there are two types of rules created and issued by federal agencies: legislative and interpretative. Legislative rules have the "force and effect of law," whereas interpretative rules do not and, thus, are not treated as binding law by the courts. While the APA requires that a legislative rule go through a rigorous public notice-and-comment process before the agency issues the final rule, it expressly provides that "interpretative rules" need not go through this notice-and-comment process.

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