Changes in Agenciess Interpretations of Their Own Regulations and Auer Deference

Abstract

Perez v. Mortgage Bankers Association, a case that is currently pending before the Supreme Court, involves the validity of a D.C. Circuit rule relating to the Administrative Procedure Act notice-and-comment requirements for rulemaking. Under the APA, substantive rules are subject to the notice and comment requirements but interpretative rules are not. Under this D.C. Circuit rule, if an agency has adopted an interpretation of one of its own substantive regulations in a guidance document that would not itself otherwise be a substantive rule, the agency must nevertheless use notice-and-comment procedures to change the interpretation. Although the D.C. Circuit has not done so, this rule can be justified based on the Auer deference principle under which agency interpretations of their own regulations are given deference similar to the deference that is given under Chevron to agency statutory interpretations. Under Auer, an agency interpretation of its own regulation can be viewed as having the force of law, and as a result should be viewed as itself a substantive rule, since a substantive rule is a rule with the force of law. As a substantive rule, notice-and-comment procedures are required.