A rule is an interpretive rule only if it can be derived from the regulation by a process reasonably described as interpretation. It is for the courts to say whether a rule is the kind of rule that is valid only if promulgated after notice and comment. It is that kind of rule if it cannot be derived by interpretation.
Respondent United States Department of Agriculture sanctioned petitioner animal dealer for violating 9 C.F.R. § 3.125(a), the animal housing standard, by failing to have an eight-foot perimeter fence. The animal dealer raised a variety of exotic animals. The department issued a memorandum stating that dangerous animals had to be inside a perimeter fence at least eight feet high. The animal dealer sought judicial review of the order.
Is a rule for the secure containment of animals (promulgated by the Department under the Animal Welfare Act, 7 U.S.C. §§ 2131 et seq.), without compliance with the notice and comment requirements of the Administrative Procedure Act, nevertheless valid because it is merely an interpretive rule?
The eight-foot perimeter fence rule was invalid because it was not promulgated in accordance with the required procedure; therefore, the department's order was vacated. The court held that if the eight-foot rule were deemed one of those minimum standards that the department was required by statute to create, it was not an interpretive rule. Section 3.125(a) appeared only to require that animal housing be sturdy enough to prevent animals from breaking through the enclosure, not that any enclosure be high enough to prevent the animals from escaping by jumping over the enclosure. There was no appellate-court type reasoning by which the department could have derived the eight-foot rule from the structural-strength regulation, § 3.125(a). The rule was arbitrary in that it was different without significant impairment of any regulatory purpose.