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which procedures fall in the residual category of formats carrying the force of law-the second puzzle. The Court still has not clarified the relationship between Mead and Barnhart. Scholars have sought to recon- cile these cases on standard legal grounds, identifying functional com- monalities in the tests.237 But they have not been able to provide con- crete guidance, leaving lower courts uncertain about whether particular interpretations satisfy.
To gain traction, we might consider the procedural issue in terms of informational asymmetries. The procedures in Mead seem to create a textbook principal-agent problem, inhibiting any form of oversight let alone fire-alarm oversight. Consider the facts in detail. The case involved a U.S. Customs Service ruling letter that specified the tariff classification for a particular imported product under the Harmonized Tariff Schedule of the United States.238 The Customs ruling letter classified imported day planners, three-ring binders with a small space for daily entries, as "dia- ries" that are "bound" for tariff purposes.2 39 This classification reflected a change in prior practice and increased the tax liability for the im- porter.2 40 It was exactly the sort of policy that constituents might bring to the attention of Congress.
Yet the ruling letters did not allow constituents to do so before the letters were a fait accompli. Such letters simply arrived on the doorstep of the importer. Furthermore, they arrived with little or no explanation, from one of forty-six different Customs offices, at a rate of 10,000 to 15,000 per year, binding no other importer.241 Thus, importers received little information to effectively challenge the tax. In addition, they had little incentive to collectivize with those similarly situated-the letters 235. See Bressman, Beyond Accountability, supra note 9, at 542-43 (describing general attributes of formal adjudication).
236. See id. at 541-42 (describing general attributes of notice-and-comment rulemaking).
237. See, e.g., Bressman, Mead, supra note 106, at 1488-90 (reading both Mead and Barnhart to "require comparable, minimum lawmaking values").
238. United States v. Mead Corp., 533 U.S. 218, 221 (2001).
239. Id. at 224-25.
240. Id. at 225.
241. Id. at 233.
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warned others against reliance. Thus, the process contained too many agents and generated too many interpretations. Congress might think that oversight of any variety was futile and that its constituents would fare better by convincing a reviewing court to protect their interests. And this is just what the Court set in motion by holding that Congress did not intend Customs letters to carry the force of law.
From this example, we may begin to understand in general which interpretations do not qualify for Chevron deference. If an interpreta- tion-or more particularly, a class of interpretations-emanates fully formed, from too many offices, with too little explanation, and too much possible variation, it does not receive Chevron deference. Rather, a court may review any such interpretation de novo, giving some respect to the agency position if appropriate. In this way, judicial review may serve to protect constituent interests in lieu of legislative oversight. Judicial re- view may also produce a longer-term gain to the extent that it encourages agencies to use oversight-worthy procedures in the future. Customs pos- sessed authority to issue the tax classifications through notice-and-com- ment rulemaking and chose not to do so.
Although Mead did not provide guidance on which nontraditional formats might qualify for Chevron deference, we might now sketch the basic criteria. To merit Chevron deference, an interpretation must pro- vide enough information for Congress to engage in fire-alarm oversight.
Thus, an interpretation must emanate from an official source, as Justice Scalia contends.2 4 2 Unless the position is authoritative, constituents do not know what to monitor. Importantly, the agency must also provide access to information before the decision is final. Thus, disclosure at an informal town meeting, as in Overton Park, might qualify, as long as it is accompanied by a reasoned explanation.
Barnhart contains an example of a procedure that qualifies on the information-oversight account for a slightly different reason.24 3 The case involved a Social Security Administration interpretation of the Social Security Act. The agency issued the interpretation through informal means but repeatedly and over a long period of time: in a 1957 letter, a 1965 manual, and a 1982 ruling.244 In 2001, it issued the same interpreta- tion through notice-and-comment rulemaking.245 The Court offered a list of factors that were relevant in analyzing the interpretation for defer- ence purposes, different from the ones that it had identified in Mead.246 Looking at the case with the information-oversight idea in mind, we might isolate one factor-namely, the longstanding interpretation of the agency. The Court noted that the interpretation, even in its pre-notice- and-comment forms, was evidently acceptable to Congress, which repeat-
242. See id. at 260 (Scalia, J., dissenting).
243. Barnhart v. Walton, 535 U.S. 212, 217 (2002).
244. Id. at 219-20.
245. Id.
246. Id. at 222.
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edly reenacted the relevant statutory provisions without change.247 Even if the early forms did not afford constituents enough information to facil- itate fire-alarm oversight, the "longstanding duration" of the interpreta- tion cured that defect.2 4 8 Congress was aware of the interpretation and had multiple opportunities to correct it. Police-patrol oversight had oc- curred even if fire-alarm oversight had not. Under the circumstances, there was no reason to withhold deference.
What we discover then is that Barnhart is a special case for judicial deference. It validates particular interpretations in the face of congres- sional acquiescence. The procedural problem was harmless error in a sense. Thus, Barnhart does not provide a mode of analysis that is gener- ally applicable to entire classes of procedures, such as Customs letter rul- ings, although lower courts have understood it this way.249 Barnhart only applies to particular interpretations under particular circumstances evi- dencing obvious legislative awareness.
The Court eventually will be asked to decide cases involving other procedures, and the information-oversight analysis may provide a helpful framework. Consider a particularly difficult case, involving interpretative or interpretive rules. Interpretive rules merely clarify existing substantive law, such as prior regulations, rather than creating new law.250 They are exempt from notice-and-comment procedures.251 If viewing interpretive rules as a category, we might expect the Court to engage in a Mead analy- sis rather than a Barnhart analysis. The question then is whether interpre- tive rules create a principal-agent problem. On the one hand, such rules evade oversight because they are exempt from notice-and-comment pro- cedures. On the other hand, Congress has expressly provided for this feature. Perhaps Congress has determined that the potential for legisla- tive oversight of the underlying substantive law (whether fire-alarm or po- lice-patrol) is sufficient, and interpretive rules may become binding gloss on such law without difficulty.
But there is a concern that affects this prediction. It is notoriously difficult to separate mere clarifications from amendments. 252 Agencies
247. Id. at 218-220.
248. Id.
249. See, e.g., Krzalic v. Republic Title Co., 314 F.3d 875, 879 (7th Cir. 2002) (applying Barnhart analysis to Housing and Urban Development Statements of Policy);
Schuetz v. Banc One Mortgage Corp., 292 F.3d 1004, 1012-14 (9th Cir. 2002) (same).
250. See, e.g., Warder v. Shalala, 149 F.3d 73, 80 (1st Cir. 1998); First Nat'l Bank v.
Sanders, 946 F.2d 1185, 1188 (6th Cir. 1991); S. Cal. Edison Co. v. FERC, 770 F.2d 779, 783 (9th Cir. 1985).
251. 5 U.S.C. § 553(b) (3) (A) (2000).
252. Justices and commentators have expressed similar concern about interpretive rules that interpret prior regulations rather than statutory provisions. See Gonzales v.
Oregon, 546 U.S. 243, 257 (2006) (holding that regulations that merely parrot statutory language are not entitled to deference under the lenient standard of Auer v. Robbins, 519 U.S. 452, 461-63 (1997)); Shalala v. Guernsey Mem'l Hosp., 514 U.S. 87, 108-09 (1995) (O'Connor, J., dissenting) (arguing that agency's interpretation of its own regulations undermined regulatory and statutory scheme); ThomasJefferson Univ. v. Shalala, 512 U.S.
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may use interpretive rules to change the law in substantive ways, even though they should not. If interpretive rules do change the law, then the potential for congressional oversight of the initial rule is insufficient.
The Court might decide that the risk of substantive change is too great to permit deference. Accordingly, it might deny deference across the board or resort to a Barnhart-style analysis, evaluating interpretive rules on a case-by-case basis, depending on whether Congress was actually aware of a particular rule, or where on the spectrum between clarification and amendment that rule lies.
What this example shows is that, in the hardest cases, the informa- tion-oversight account may not eliminate the need for judgment about which interpretive formats merit Chevron deference. Yet it is still a plausi- ble reading of Mead. Furthermore, it is still a helpful reading. The infor- mation-oversight framework yields a more comprehensible and consis- tent set of factors for lower courts and others to consider than previous analyses have provided.
3. In Relation to Brand X. - Before leaving Mead, we might touch on