BREYER, J., dissenting
Supp. IV); §9321(e)(1), 100 Stat. 2017.
Congress meant the term “regulation” to include only substantive or legislative rules. As I have said, supra, at 3, at the time Congress wrote the notice-and-comment provision in the 1980s, courts sometimes used all three terms interchangeably. See, e.g., Cabais, 690 F. 2d, at 238. And the legislative history confirms that Congress expected the APA principles to apply. The House-Senate Conference Report stated that the 1986 notice-and-comment provision would not require rulemaking for “items (such as interpretive rules, general statements of policy, or rules of agency organization, procedure or practice) that are not currently subject to that requirement.” H. R. Conf. Rep. No. 99–1012, p. 311.
As of 1986, then, it was clear that the Medicare Act required notice-and-comment rulemaking only for substantive rules, not for interpretive rules. That was true even though the Medicare Act did not expressly cross-reference the APA’s exception for interpretive rules. Instead, Congress simply understood that the statutory term “regulation” excluded interpretive rules, statements of policy, and the like.
Now I shall turn to the subsection before us, a provision enacted one year later. Did that provision, enacted in 1987, significantly change the scope of the Medicare Act’s notice-and-comment requirement? The House of Representatives passed a version of the provision that seemed to say yes. The House Report on that bill said that the provision arose from a “concer[n] that important policies [were] being developed without benefit of the public notice and comment period and, with growing frequency, [were] being transmitted, if at all, through manual instructions and other informal means.” H. R. Rep. No. 100−391, pt. 1, p. 430 (emphasis added). Thus, the House bill required notice and comment for any “rule, requirement, or other statement of policy . . . that has (or may have) a significant
