The Binding Norm Test
What is the binding norm test ?
In Central Dauphin Sch. Dist. v. Commonwealth, Dep't of Educ., 147 Pa. Commw. 426, 608 A.2d 576 (Pa. Cmwlth. 1992), for example, the Court explained:
A regulation is a governmental agency's exercise of delegated legislative power to create a mandatory standard of behavior.
A regulation is binding on a reviewing court if it conforms to the grant of delegated power, is issued in accordance with proper procedures, and is reasonable.
In contrast, a statement of policy is a governmental agency's statutory interpretation which a court may accept or reject depending upon how accurately the agency's interpretation reflects the meaning of the statute. Id. at 580-81.
The Court added that SOPs "provide agencies with guidance in ascertaining whether they are conforming to the legislative intent expressed in a statute," and allow "evaluation of agency compliance on a case-by-case basis." Id. at 582.
Pennsylvania follows the "binding norm test" to assess whether an agency's pronouncement is a regulation or a statement of policy. R.M. v. Pennsylvania Housing Finance Agency, 740 A.2d 302, 307 (Pa. Cmwlth. 1999).
In Rushton Mining Company, this Court elaborated on the idea of a binding norm by explaining that a:
'binding norm' means that the agency is bound by the statement until the agency repeals it, and if the statement is binding on the agency, it is a regulation.
In determining whether an agency action is a regulation or a statement of policy, one must look to the extent to which the challenged pronouncement leaves the agency free to exercise discretion to follow or not follow the announced policy in an individual case. Rushton Mining Company, 591 A.2d at 1173;
See also Home Builders Ass'n of Chester & Del. Counties v. Commonwealth, 828 A.2d 446, 450 (Pa. Cmwlth. 2003) (discussing how, in Norristown, the Pennsylvania Supreme Court "adopted the federal rationale known as the 'binding norm test' to determine when a statement of policy was actually a regulation|.").
In ascertaining whether an agency has established a binding norm, the reviewing court must consider:
(1) the plain language of the provision;
(2) the manner in which the agency has implemented the provision;
(3) whether the agency's discretion is restricted by the provision. R.M., 740 A.2d at 307; Millcreek, 796 A.2d at 1026.