Ruling Without Real Rules--Or How to Influence Private Conduct Without Really Binding

10 Pages Posted: 21 Mar 2002

Abstract

The circumstances under which administrative agencies should utilize interpretive rules, opinion letters, enforcement manuals, and other similar forms of guidance, and the practical and legal effect on the public of the use of such forms of guidance, is subject to considerable debate. On the one hand, the agency guidance embodied in such typically informal administrative actions may be viewed as helpful advice that may allow a private citizen to avoid a run-in with the law, or at least consciously to make a decision that she is willing to accept the risk of such a run-in. On the other hand, such guidance might be seen as a way for the government to influence the conduct of private citizens without undertaking relatively more formal procedures, such as a notice-and-comment rulemaking in accordance with Administrative Procedure Act (APA) requirements, that clearly would give the agency action the force of law.

In the paper, as a means of considering the legal and practical impact of informal administrative actions, I examine the circumstances surrounding the issuance and quick withdrawal of an informal opinion letter by an office director of the Occupational Health and Safety Commission. The letter stated that that OSHA safety standards apply to home offices. I conclude that the OSHA letter should not be binding as a matter of law because it was not issued under sufficiently clear delegated authority and should not be entitled to Chevron deference which, for practical purposes, would render it binding. Moreover, I conclude that in this particular instance OSHA's action was inappropriate because bringing home offices within OSHA's regulatory purview almost certainly should have been, and would have been, recognized by agency officials as a step of such public import as to counsel some form of more formal and participatory process culminating in action by the agency head, rather than a letter from the director of a compliance office who issues hundreds of similar advice letters a year.

This article is derived from a presentation on interpretive rules at the February 2001 meeting of the Administrative Law and Regulatory Practice Section of the ABA. Other participants on the panel were Professors Peter Strauss, William Funk, and Robert Anthony.

Suggested Citation

May, Randolph J., Ruling Without Real Rules--Or How to Influence Private Conduct Without Really Binding. Available at SSRN: https://ssrn.com/abstract=302806 or http://dx.doi.org/10.2139/ssrn.302806

Randolph J. May (Contact Author)

The Free State Foundation ( email )

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Potomac, MD 20859
United States
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