BREYER, J., dissenting
rules” do not have the “force and effect of law”; they simply set forth the agency’s interpretation of the statutes or regulations that it administers. Chrysler Corp., 441 U. S., at 302, and n. 31; see also American Hospital Assn., 834 F. 2d, at 1045 (interpretive rules “merely clarify or explain existing law or regulations”). Then, as today, whether a rule was substantive or interpretive determined whether it had to be promulgated using the APA’s notice-and-comment rulemaking procedures. 5 U. S. C. §553(b)(3)(A) (exempting “interpretative rules,” among other things, from the notice-and-comment requirement); see also Shalala v. Guernsey Memorial Hospital, 514 U. S. 87, 99 (1995) (“Interpretive rules do not require notice and comment”).
At this point, we can begin to see support in the statutory language for the Government’s interpretation of the notice-and-comment provisions—one that excludes interpretive rules from their scope. By applying the statute only to agency actions that “establish or change a substantive legal standard,” §1395hh(a)(2) (emphasis added), Congress used words that courts had long used to describe substantive rules under the APA. See, e.g., American Hospital Assn., 834 F. 2d, at 1045, 1046 (“ ‘substantive rules’ ” are rules that “ ‘create law’ ” or “ ‘establis[h] a standard of conduct which has the force of law’ ”); Linoz v. Heckler, 800 F. 2d 871, 877 (CA9 1986) (substantive rules “ ‘effect a change in existing law or policy’ ”). Moreover, by limiting the notice-and-comment requirement to “regulation[s],” §1395hh(b)(1) (emphasis added), Congress used a word that courts had sometimes treated as interchangeable with the term “substantive rules.”
Another subsection of the statute, §1395hh(e)(1), similarly implies that Congress had only substantive rules in mind when it used the term “regulations.” That subsection bars the agency from retroactively applying certain policy changes articulated in “regulations, manual instruc-
