By Brian J. Shearer | 62 Am. U. L. Rev. 167 (2012)

The Supreme Court’s 2009 decision in FCC v. Fox Television Stations, Inc. undermined the controversial Alaska Hunters doctrine by stating that the Administrative Procedure Act (APA) treats initial and subsequent agency actions in the same way.  Applied to rulemaking, Fox would have the APA treat initial regulatory interpretations and subsequent revisions of those interpretations in the same way, in direct conflict with the Alaska Hunters doctrine’s requirement of notice and comment for certain revisions.

At the same time that the Supreme Court undermined this restriction on agency discretion, the Court provided a possible replacement:  substantive arbitrary and capricious review that can be applied to interpretive rulemaking.  Using the arbitrary and capricious review in Fox, which requires (1) an explanation of why the agency changed, (2) a justification of why factors used in the previous interpretation were disregarded, and (3) an analysis on how reliance interests were considered, courts could police agency interpretive discretion by conducting a reasoned analysis of adjustments to regulatory interpretations.

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