BREYER, J., dissenting
participants navigate the statutory and regulatory scheme, the agency has issued tens of thousands of pages of manual instructions, interpretive rules, and other guidance documents. And it has followed this practice since well before Congress enacted the notice-and-comment provisions at issue here. See supra, at 6.
This combination of regulations and informal guidance is, we have said, “a sensible structure for the complex Medicare reimbursement process.” Guernsey Memorial Hospital, 514 U. S., at 101. Notice-and-comment procedures are elaborate and take time to complete. The Government cites a study showing that notice-and-comment rulemakings take an average of four years to complete. Pet. for Cert. 20 (citing GAO, D. Fantone, Federal Rulemaking 5, 19 (GAO–09–205, 2009)).
To imagine that Congress wanted the agency to use those procedures in respect to a large percentage of its Medicare guidance manuals is to believe that Congress intended to enact what could become a major roadblock to the implementation of the Medicare program. As the Government warns us, the Court of Appeals’ interpretation may “substantially undermine” and even “cripple” the administration of the Medicare scheme. See Brief for Petitioner 21, 42. To illustrate this point, consider the following provisions of the Medicare Provider Reimbursement Manual, which the agency has published for decades. All of these provisions were held by courts to be “interpretive rules,” and hence not subject—before today— to the statute’s notice-and-comment requirements:
• Provisions governing when provider contributions to employee deferred compensation plans are necessary and proper and therefore reimbursable. Visiting Nurse Assn. Gregoria Auffant, Inc. v. Thompson, 447 F. 3d 68, 76−77 (CA1 2006).
