Rebecca Wernicke · October 2014
82 GEO. WASH. L. REV. 1699 (2014)
In Mortgage Bankers Ass’n v. Harris, the D.C. Circuit applied a disfa- vored doctrine for the first time in fourteen years to invalidate an agency’s change to an interpretive rule, holding that the agency needed to undertake notice-and-comment rulemaking in order to make the change. The doctrine the court applied, commonly referred to as the Alaska Hunters doctrine, requires that agencies use notice-and-comment rulemaking each time they seek to change a definitive interpretive rule. This doctrine has been widely criticized by scholars, who have called it “a mistake” and “a procedural straight-jacket” because it creates procedural requirements for agency informal rulemaking not required by the Administrative Procedure Act. For a time, it was avoided by the D.C. Circuit, which regularly narrowed or ignored the doctrine. In Mortgage Bankers, however, the court arguably revived and expanded the doctrine by making it applicable even in cases where no reliance on the initial interpretive rule is shown. This eliminated the best policy for the Alaska Hunters doctrine and made it more widely applicable. This Essay argues that the best way to address the problem of changes in an agency’s interpretive rules is not through additional procedural requirements, but by a more critical substantive review of an agency’s changed interpretive rules.
