Question

I am reading managing the public sector. On the rulemaking process, there are prospective rules and interpretive rules. According to this textbook,it said that Prospective rule is the agency statement of general applicablity and future effect that concern the rights pf private parties. On the other hand, interpretive rule simply indicate how an agency plans to interpret and enforce its satutory authority. Could you explane each by giving the real example?

Answer 1

Prospective rules are futuristic and are formulated always from the point of view of an adverse effect of a law or policy on a non-agency or private party. The applicability of such rules are generic i.e. not specific to any party and must be prospective or speculative in nature. For example, consider the case of Excelsior Underwear Ic. where the union of the company challenged the fairness of the election because the union was not provided with the list and address of the employees participating. The NLRB, as an agency ruled that the election should be conducted and in future, all employers will be required to provide such list the beginning thirty days after the issuance of the option. This is a prospective rule because it is generic in nature, not intended for a particular employee or union. Also, this is futuristic as this does not affect the present election and looks at the aftereffects of the policy.

On the contrary, Interpretive rules have nothing to do with amending or modifying a policy nor they try to protect interests of any party. They will merely inform the public regarding an agency's point of view or interpretation of a particular policy or law. For example, in 1988, the Department of Health and Human Services (HHS) promulgated a regulation which prohibited health care professionals receiving federal family planning funds from mentioning abortion to their patients and the law was characterized as a prohibition on abortion counseling by the Supreme Court. The HHS issued directives and made effort to ensure that the regulation was not applied in a manner that a woman cannot receive required information from a doctor. Note that this was only interpretation and applicability of the law and not any change, modification, or amendment is included.