Agency flexibility is a battlefield. When circumstances change or a new regime takes power, federal agencies often adjust their settled regulations to reflect new realities. There is a persistent struggle, however, between preserving this flexibility and protecting those who relied upon the previous regulations.' When an agency changes course, regulated entities must comply, often with little warning and at great expense. In 1946, Congress passed the Administrative Procedure Act ("APA") to balance these interests by restricting when and how agencies can promulgate and change regulations.
Unsurprisingly, the APA did not achieve a lasting d6tente. Instead, it merely created new fronts on which this same conflict has continued to rage. Perhaps the most interminable of these battles is the distinction between legislative rules that require notice and comment and nonlegislative rules that do not.
Matthew P. Downer,
Tentative Interpretations: The Abracadabra of Administrative Rulemaking and the End of 'Alaska Hunters',
67 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol67/iss3/5