BREYER, J., dissenting
making provision does not extend to interpretive rules. As enacted in 1965, the Medicare Act authorized the agency to promulgate “regulations” as necessary, but did not require the agency to follow any particular rulemaking procedures. See §102(a), 79 Stat. 331. The APA’s noticeand-comment requirements did not apply to Medicare regulations, for the APA specifically exempts “matter[s] relating to . . . benefits” from its scope. 5 U. S. C. §553(a)(2).
In 1971, the agency nonetheless adopted a policy of voluntarily promulgating most regulations through notice-and-comment rulemaking. See Public Participation in Rule Making, 36 Fed. Reg. 2532. But the agency did not use notice and comment for all policy decisions during this time. It also provided extensive guidance to participants in the Medicare system through less formal means like manuals (a practice it still follows today). See, e.g., Daughters of Miriam Ctr. for the Aged v. Mathews, 590 F. 2d 1250, 1254 (CA3 1978) (describing the agency’s Provider Reimbursement Manual, which “interprets and elaborates upon” Medicare regulations).
In the early 1980s, the agency proposed to change its notice-and-comment policy: It no longer intended to use notice and comment when the disadvantages of doing so “outweigh[ed] the benefits of receiving public comment.” Administrative Practice and Procedures, 47 Fed. Reg. 26860 (1982). This announcement provoked widespread opposition. Citizens’ groups and others asked Congress to “make it clear, by statute, that Medicare regulations . . . should be subject to” the APA. Medicare Appeals Provisions: Hearing on S. 1158 before the Subcommittee on Health of the Senate Committee on Finance, 99th Cong., 1st Sess., 62 (1985). In 1986, Congress responded to these requests by enacting a provision that required public notice and a 60-day comment period for “any regulation,” with a few exceptions. See 42 U. S. C. §1395hh (1982 ed.,
