                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 05a0128p.06

                     UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                     X
                               Plaintiff-Appellant, -
 DISMAS CHARITIES, INC.,
                                                      -
                                                      -
                                                      -
                                                          No. 03-6502
          v.
                                                      ,
                                                       >
 UNITED STATES DEPARTMENT OF JUSTICE, FEDERAL -
                                                      -
                              Defendant-Appellee. -
 BUREAU OF PRISONS,

                                                      -
                                                     N
                       Appeal from the United States District Court
                    for the Western District of Kentucky at Louisville.
                No. 03-00158—John G. Heyburn II, Chief District Judge.
                                   Argued: September 22, 2004
                               Decided and Filed: March 11, 2005
                Before: SILER, BATCHELDER, and ROGERS, Circuit Judges.
                                       _________________
                                            COUNSEL
ARGUED: James R. Adams, FROST, BROWN & TODD, Cincinnati, Ohio, for Appellant.
Michael E. Robinson, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee. ON BRIEF: David S. Kaplan, Sheryl G. Snyder, FROST, BROWN & TODD,
Louisville, Kentucky, for Appellant. Michael E. Robinson, Michael Jay Singer, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
                                       _________________
                                           OPINION
                                       _________________
         ROGERS, Circuit Judge. Dismas Charities, Inc. appeals the district court’s dismissal of its
challenge to a Bureau of Prisons policy that reduced the number of federal prisoners eligible to serve
all or part of their sentences in a community correction center. Dismas’s interests do not fall within
the zone of interests protected by the primary basis for their challenge to the policy, 18 U.S.C.
§ 3621(b). Moreover, while Dismas does have standing under the notice and comment requirements
for informal rulemaking contained in § 553 of the Administrative Procedure Act (“APA”), its
alternative claim brought under that section fails as a matter of law. Accordingly, we affirm.




                                                  1
No. 03-6502                Dismas Charities, Inc. v. United States Dep’t of                                    Page 2
                           Justice, Federal Bureau of Prisons


I. Introduction
        Dismas Charities, Inc. (“Dismas”) filed suit on March 10, 2003, seeking declaratory and
injunctive relief against the Bureau of Prisons (“BOP”). The controversy stems from a recent
change in the BOP’s interpretation of 18 U.S.C. § 3621(b), which governs the BOP’s assignment
of federal prisoners. The new interpretation curtails the circumstances in which federal prisoners1
are eligible to serve all or part of their sentences in a community correction center (“CCC”).
Dismas alleges that the new interpretation of § 3621(b) is arbitrary and capricious, and that before
changing its interpretation of § 3621(b), the BOP failed to abide2 by the notice and comment
provisions contained in § 553 of the Administrative Procedure Act. The district court dismissed
Dismas’s claims, finding that Dismas was not within the zone of interests protected by § 3621(b),
and therefore lacked standing. Dismas appeals the dismissal, arguing that its mission and values are
within the zone of interests protected by § 3621(b).
        We affirm the district court’s judgment. Dismas lacks standing under § 3621(b) because it
is not within the zone of interests sought to be protected by Congress when enacting the statute.
Although this does not dispose of Dismas’s claim under § 553 of the APA, for which Dismas does
have standing, the latter claim fails because the APA does not require notice and comment in the
circumstances alleged in this case.
II. Background
         Dismas Charities, Inc. is a nonprofit corporation that owns and operates eighteen CCCs in
seven states. The majority of Dismas CCCs house only federal inmates. CCCs, such as Dismas,
provide an alternative to traditional incarceration and attempt to facilitate the successful transition
of prisoners back into society. While in a CCC, offenders must obtain employment, pay fines,
restitution, child support, and subsistence, establish a budget, save money, and, if applicable, seek
treatment of substance abuse and mental health issues, as well as attend classes in life skills, anger
management, and wellness.
         The Department of Justice’s Bureau of Prisons chooses which inmates are sent to Dismas
facilities. Before the change in policy, Dismas received two types of inmates—those on the “front
end” of their sentences and those on the “back end.” Front end placements usually involve offenders
with relatively short sentences who serve their entire sentence at the CCC. Back end designations,
by contrast, involve prisoners who have served the majority of their sentences in prison, but are sent
to a CCC for a time before their release in order to provide transition of the offender back into
society.
       18 U.S.C. § 3621(b) grants the BOP discretion to designate a prisoner’s place of
incarceration in “any available penal or correctional facility that meets minimum standards of health
and habitability . . . .” On March 25, 1992, the Department of Justice’s Office of Legal Counsel
(“OLC”) issued an opinion that interpreted § 3621(b) to allow the BOP unlimited authority to place
prisoners in any appropriate facility for incarceration, including those operated by the private sector.
16 Op. Off. Legal Counsel 65, 67 (1992).


         1
             CCCs are also known as “halfway houses.”
         2
          The First and Eighth Circuits have held that the BOP’s new interpretation of §3621(b) is contrary to the plain
meaning of the statute and therefore invalid. Goldings v. Winn, 383 F.3d 17, 28-29 ( 1st Cir. 2004); Elwood v. Jeter,
386 F.3d 842, 847 (8th Cir. 2004). In Goldings and Elwood, the plaintiffs had standing because they were federal
prisoners who fell within the zone of interests of § 3621(b).
No. 03-6502          Dismas Charities, Inc. v. United States Dep’t of                       Page 3
                     Justice, Federal Bureau of Prisons


        On December 13, 2002, however, the OLC changed its interpretation of §3621(b). Op. Off.
Legal Counsel, slip. op., 2002 WL 31940146 (December 13, 2002). The OLC determined first that
U.S.S.G. §5C1.1 did not permit the BOP to substitute confinement in a CCC for a minimum term
of imprisonment imposed under that guideline. The OLC also concluded that § 3621(b) does not
give the BOP general authority to place an offender in community confinement from the outset of
his sentence or to transfer the offender from prison to community confinement at any time the BOP
chooses during the course of the offender’s sentence. Instead, under the new interpretation of
§ 3621(b), front end placements are not authorized and back end offenders are only eligible for
confinement in CCCs for the lesser of (i) ten percent of their sentence or (ii) six months—periods
specifically authorized by 18 U.S.C. § 3624(c) (2000). The OLC reasoned that, while § 3621(b)
gave the BOP the discretion to choose an inmate’s place of imprisonment generally, a CCC did not
constitute a place of imprisonment for purposes of that section. Op. Off. Legal Counsel, 2002 WL
31940146 (December 13, 2002). Instead, the OLC determined that the authority to transfer a
prisoner to a CCC came solely from § 3624(c), which limits the time a prisoner may spend in a CCC
to “a reasonable part, not to exceed six months, of the last 10 per centum of the term.” Id.
       Shortly after the 2002 OLC opinion was issued, a memorandum written by Deputy Attorney
General Larry Thompson instructed the BOP to transfer all offenders residing in CCCs with more
than 150 days remaining on their sentence to a traditional prison facility because the use of CCCs
was “unlawful.” Memorandum of Deputy Attorney General Larry D. Thompson, December 16,
2002, at 1. The operative language of the Thompson memorandum is as follows:
               OLC has now issued a formal opinion finding that BOP’s policy is unlawful.
       Accordingly, BOP immediately should take all steps necessary to ensure that its
       sentencing placement decisions are in full compliance with the governing law. In
       addition, BOP should transfer to an actual prison facility all federal offenders
       currently residing in a CCC who, as of today, have more than 150 days remaining on
       the imprisonment component of their sentence. BOP shall give at least 30 days
       written notice to each such offender prior to the transfer.
Id. The Thompson memorandum proceeded to describe the conclusions of the OLC memorandum.
Id. at 1-2. The Thompson memorandum concluded by explaining that a concern regarding the
BOP’s previous CCC placement policy was its “potentially disproportionate, and inappropriately
favorable, impact on so-called ‘white-collar’ criminals.” Id. at 2-3.
         On December 20, 2000 the Director of the BOP issued a memorandum to all federal judges
stating that the BOP would no longer honor judicial recommendations to place inmates in CCCs for
the imprisonment portions of their sentences. Memorandum of BOP Director Kathleen Hawk
Sawyer, December 20, 2002, at 1. “Effective immediately, this practice will no longer be followed.
The Bureau will not use CCCs as a substitute for imprisonment.” Id. The memorandum explained
briefly:
               This procedure change follows recent guidance from the U.S. Department of
       Justice’s Office of Legal Counsel (OLC), finding that the term “community
       confinement” is not synonymous with “imprisonment.” OLC has determined that the
       Bureau’s practice of using CCCs as a substitute for imprisonment contravenes well-
       established caselaw, and is inconsistent with U.S.S.G. § 5C1.1.
Id.
      The change in the interpretation of § 3621(b) has had a severe impact on Dismas. For
example, in the time period between January 2001 and May 2003, the number of front end offenders
No. 03-6502            Dismas Charities, Inc. v. United States Dep’t of                             Page 4
                       Justice, Federal Bureau of Prisons


housed at CCCs operated by Dismas was drastically reduced, resulting in a revenue loss of
$467,315. The number of back end prisoners was also reduced, resulting in a loss of revenue of
$121, 351. In addition, the BOP cancelled the designations of many back end prisoners from
January to May 2003 for an additional loss of $625,933 in revenue. All told, the lost revenue
amounted to $1,214,599. Dismas further argues that the BOP instruction interferes with its ability
to help prisoners adjust to life outside prison, contending that offenders need at least 90-120 days
in a CCC to adjust to outside life. Under the new policy, only people sentenced to imprisonment
for 60 months or more can benefit from six months in a CCC, and many prisoners with sentences
of less than 60 months would not be able to stay at a CCC for the necessary 120 days.
III. Standing
        Dismas argues that the BOP’s new interpretation of § 3621(b) is unlawful because the new
interpretation was arbitrary and capricious, and because the BOP did not comport with the notice
and comment requirements for informal rulemaking contained in § 553 of the APA. The district
court did not reach the merits of these claims; instead, it dismissed the suit after finding that Dismas
lacked standing.
        We review de novo a district court’s decision to dismiss a case for lack of standing.
Courtney v. Smith, 297 F.3d 455, 459 (6th Cir. 2002). “‘For purposes of ruling on a motion to
dismiss for lack of standing, a complaint must be viewed in the light most favorable to the plaintiff;
all material allegations of the complaint must be accepted as true.’” Id. (quoting Am. Fed’n of Gov’t
Employees v. Clinton, 180 F.3d 727, 729 (6th Cir. 1999)). However, “the plaintiff, as the party
invoking federal subject matter jurisdiction, has the burden of persuading the court that all of the
requirements necessary to establish standing to bring the lawsuit have been met.” Id. (citing Lujan
v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).
        While the standing requirements imposed by Article III of the Constitution require a plaintiff
to suffer a sufficient injury in fact, § 10 of the APA requires that the plaintiff also demonstrate that
it has prudential standing. Nat’l Credit Union Admin. v. First Nat’l Bank & Trust Co. (“NCUA”),
522 U.S. 479, 488 (1988); 5 U.S.C. § 702. Prudential standing requires “the interest sought to be
protected by the complainant [to be] arguably within the zone of interests to be protected or
regulated by the statute or constitutional guarantee in question.” Ass’n of Data Processing Serv.
Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970). The Supreme Court has summarized the zone-of-
interests test as
        a guide for deciding whether, in view of Congress’ evident intent to make agency
        action presumptively reviewable, a particular plaintiff should be heard to complain
        of a particular agency decision. In cases where the plaintiff is not itself the subject
        of the contested regulatory action, the test denies a right of review if the plaintiff’s
        interests are so marginally related to or inconsistent with the purposes implicit in the
        statute that it cannot reasonably be assumed that Congress intended to permit the
        suit. The test is not meant to be especially demanding; in particular, there need be
        no indication of congressional purpose to benefit the would-be plaintiff.
Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399-400 (1987) (footnote omitted). “Whether a plaintiff’s
interest is ‘arguably . . . protected . . . by the statute’ within the meaning of the zone-of-interests test
is to be determined not by reference to the overall purpose of the Act in question . . . , but by
reference to the particular provision of law upon which the plaintiff relies.” Bennett v. Spear, 520
U.S. 154, 175-76 (1997) (emphasis added).
No. 03-6502               Dismas Charities, Inc. v. United States Dep’t of                                     Page 5
                          Justice, Federal Bureau of Prisons


        The district court found that Dismas lacked prudential standing under § 3621(b) because its
interests fall outside of the zone of interests protected by § 3621(b). Dismas, however, argues that
its mission and values are the same interests advanced by § 3621(b).3 Dismas asserts that its
mission, as well as the BOP’s, is to provide federal prisoners with secure housing and opportunities
for self-improvement. Thus, it argues, the BOP’s recent interpretation of § 3621(b) restricts the
interests Dismas has in helping federal offenders become productive members of society.
         Section 3621(b) states, in its entirety:
         The Bureau of Prisons shall designate the place of the prisoner’s imprisonment. The
         Bureau may designate any available penal or correctional facility that meets
         minimum standards of health and habitability established by the Bureau, whether
         maintained by the Federal Government or otherwise and whether within or without
         the judicial district in which the person was convicted, that the Bureau determines
         to be appropriate and suitable, considering–
                 (1) the resources of the facility contemplated;
                 (2) the nature and circumstances of the offense;
                 (3) the history and characteristics of the prisoner;
                 (4) any statement by the court that imposed the sentence–
                         (A) concerning the purposes for which the sentence to imprisonment
                         was determined to be warranted; or
                         (B) recommending a type of penal or correctional facility as
                         appropriate; and
                 (5) any pertinent policy statement issued by the Sentencing Commission
                 pursuant to section 994(a)(2) of title 28.
         In designating the place of imprisonment or making transfers under this subsection,
         there shall be no favoritism given to prisoners of high social or economic status. The
         Bureau may at any time, having regard for the same matters, direct the transfer of a
         prisoner from one penal or correctional facility to another. The Bureau shall make
         available appropriate substance abuse treatment for each prisoner the Bureau
         determines has a treatable condition of substance addiction or abuse.
18 U.S.C. § 3621(b). The district court read this language to mean that Congress’s primary interest
in enacting § 3621(b) was to ensure that the BOP had the appropriate discretionary authority to
determine where and in which facility federal inmates will be housed. Dismas, however, relying on
legislative history, urges the court also to consider the rehabilitation of prisoners as an interest
protected by § 3621(b).4 According to Dismas, the interests of rehabilitation and the BOP’s ability

         3
           Dismas is founded upon seven values: maintenance of ethical conduct, accountability, integrity and trust;
respect, compassion; capacity to change; community is vital to the healing process; healing the human spirit; and self-
sufficiency.
         4
             Section 3621 replaced 18 U.S.C. § 4082(b) as part of the Sentencing Reform Act of 1984. One of the stated
legislative purposes of § 4082 was “to facilitate the rehabilitation of persons convicted of offenses against the United
States . . . [by] authorizing the use of residential community treatment centers, emergency furloughs, and community
employment or training . . . .” S. REP. 89-613 (1965), reprinted in 1965 U.S.C.C.A.N. 3076, 3076. (“The residential
community centers, the so-called halfway houses, would make it possible to reintroduce prisoners to the community in
a gradual and controlled way.”). The BOP acknowledges that the purpose of § 4082 was to facilitate the rehabilitation
of federal offenders through the use of CCCs.
         The Senate Report discussing the passage of § 3621(b) however refers to 18 U.S.C. § 4082(b) only in general
terms:
No. 03-6502                Dismas Charities, Inc. v. United States Dep’t of                                             Page 6
                           Justice, Federal Bureau of Prisons


to have a plethora of choices are interests it also shares, thus making Dismas arguably within the
zone of interests protected by § 3621(b).
        There is a certain plausibility to Dismas’s contention that at least an arguable goal of §3621
is to facilitate the rehabilitation of prisoners. However, even if that is so, it is not sufficient to
demonstrate that Dismas has standing. This is because the relevant inquiry under the zone-of-
interests test is not whether the overall statute in question furthers goals shared by the plaintiff, but
whether the particular statutory (or regulatory or constitutional) provision relied upon by the
plaintiff to win in court protects the interests of someone in the plaintiff’s position. Bennett, 520
U.S. at 175-76. This is the relevant inquiry because the zone-of-interests test derives from a
statutory codification of the general prudential standing requirement that plaintiffs challenging
government action—even those who have Article III injury in fact—may generally litigate only their
own rights, and not those of third parties. See Kowalski v. Tesmer, —U.S.—; 125 S.Ct. 564 (2004).
This limitation is based on the assumption
         that the party with the right has the appropriate incentive to challenge (or not
         challenge) governmental action and to do so with the necessary zeal and appropriate
         presentation. It represents a "healthy concern that if the claim is brought by someone
         other than one at whom the constitutional protection is aimed,” the courts might be
         “called upon to decide abstract questions of wide public significance even though
         other governmental institutions may be more competent to address the questions and
         even though judicial intervention may be unnecessary to protect individual rights.”
Id. at 567 (internal citations omitted). Of course, the only way to tell whose rights are being litigated
is to look at the legal basis for the claim, to see whether that provision protects plaintiff or only
someone else.
        In the APA context, the prudential standing requirements have been loosened. Prudential
standing requirements can be lifted or modified by statute, F.C.C. v. Sanders Bros. Radio Station,
309 U.S. 470, 477 (1940); Bennett, 520 U.S. at 162, and the Supreme Court has interpreted § 702
of the APA to have loosened prudential standing requirements for suits under the APA. Data
Processing, 397 U.S. at 157; see Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883 (1990) (“We have
long since rejected [the] interpretation . . . which would have made the judicial review provision of


         Proposed 18 U.S.C. 3621(a) is derived from 18 U.S.C. §4082(a) except that the new provision places
         custody of federal prisoners directly in the Bureau of Prisons rather than the Attorney General. This
         change is not intended to affect the authority of the Bureau of Prisons with regard to such matters as
         place of confinement of prisoners . . . and correctional programs, but is designed only to simplify the
         administration of the prison system . . . . Proposed 18 U.S.C. § 3621(b) follows existing law in
         providing that the authority to designate the place of confinement for federal prisoners rests in the
         Bureau of Prisons. The designated penal or correctional facility need not be in the judicial district in
         which the prisoner was convicted and need not be maintained by the federal government. Existing
         law provides that the Bureau may designate a place of confinement that is available, appropriate and
         suitable. Section 3621(b) continues that discretionary authority . . . . After considering these factors
         [such as nature and circumstances of the offense, recommendation of the court, etc.], the Bureau of
         Prisons may designate the place of imprisonment in an appropriate type of facility.
         . . . The Committee, by listing factors for the Bureau to consider in determining the appropriateness
         or suitability of any available facility, does not intend to restrict or limit the Bureau in the exercise of
         its existing discretion so long as the facility meets the minimum standards of health and habitability.
S. REP. 98-225 at 141-42 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3324-25 (emphasis added.) Dismas argues that
the “follows existing law” language in the report harkens back to the rehabilitation goal stated in § 4082. Thus, Dismas
urges us to conclude, the legislative history demonstrates that rehabilitation was clearly an interest of § 4082, and this
interest did not change when it was recodified as § 3621(b).
No. 03-6502                Dismas Charities, Inc. v. United States Dep’t of                                           Page 7
                           Justice, Federal Bureau of Prisons


the APA no more than a restatement of pre-existing law. Rather we have said that to be ‘adversely
affected or aggrieved . . . within the meaning’ of a statute, the plaintiff must establish that the injury
he complains of . . . falls within the ‘zone of interests’ sought to be protected by the statutory
provision whose violation forms the legal basis for his complaint”). Our statutorily-required,
loosened inquiry is whether plaintiff is “arguably” within the “zone of interests” of the statute that
is the basis for the lawsuit.
        With or without § 702 and its gloss from Data Processing, however, the prudential standing
inquiry requires a clear identification of the relevant provision that is the basis for the lawsuit. The
relevant statute for purposes of a zone-of-interests inquiry is not the statute that is challenged by a
plaintiff, nor is it the statute that provides the general context for the challenge to agency action, nor
even necessarily the statute that authorizes the challenged agency action. It is the statutory (or other
legal) provision that the plaintiff points to as the legal basis for arguing against the challenged
agency action. Only by first correctly identifying the statutory provision upon which the plaintiff
relies can we then ask whether the plaintiff is arguably within the zone of interests protected by that
provision. If not even arguably within the zone of interests protected by that provision, the plaintiff
is necessarily arguing someone else’s rights (if any rights there are), and thereby fails the prudential
standing requirement. And it makes no difference if the plaintiff “shares the interests” of the third
party in the sense of merely desiring, or even having an economic interest in, having the third party
enjoy those rights.
       Dismas’s contentions in this case boil down to two: (1) the BOP abused the discretion
granted to it by §3621(b) by limiting CCC placements, and (2) the BOP was required by APA § 553
to provide notice and opportunity for comment before adopting the policy at issue. In order to
determine whether Dismas has prudential standing, we must determine with respect to each of these
two different claims what the relevant statutory basis for the claim is, and then determine whether
Dismas is arguably within the zone of interests protected by that statutory provision.
A. Claim Under § 3621(b)
        First with respect to Dismas’s abuse of discretion claim, Dismas fails the zone-of-interests
test because the grant of discretion given to the BOP to send prisoners to CCCs (under Dismas’s
view of the statute), while arguably intended to help rehabilitate prisoners, was not even arguably
intended to provide a benefit to the CCCs themselves.5 The policies underlying the zone-of-


         5
           It might be argued that the relevant statute—the one on which plaintiff bases its §3621 claim—is not really
§ 3621 but the judicial review provision of the APA, 5 U.S.C. § 706. Section 706 does indeed render reversible agency
action that is arbitrary, capricious, or an abuse of discretion. § 706(2)(A). It would however make little sense to look
to the statutory purposes underlying § 706 to determine prudential standing in every judicial review case. It is only
possible to ascertain that action is arbitrary or capricious by looking at other substantive bases of law. This is particularly
so in the instant case, where the core issue is what discretion is given by § 3621. The Supreme Court in Motor Vehicle
Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins., 463 U.S. 29 (1983), listed a number of types of situations in which
agency action might be deemed arbitrary or capricious. These include situations where
         the agency has relied on factors which Congress has not intended it to consider, entirely failed to
         consider an important aspect of the problem, offered an explanation for its decision that runs counter
         to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in
         view or the product of agency expertise.
Id. at 43. Each of these paradigm examples of arbitrary or capricious action either directly or indirectly implicates
agency action based on illegal considerations. It is substantive law that makes such considerations illegal, and
ultimately it is such law that forms the basis for an “arbitrary or capricious” APA challenge. Therefore it is to such law
that we must look to resolve a zone-of-interests standing issue with respect to substantive “arbitrary or capricious”
judicial review under the APA. While § 706 may be the lens for judicial review, it is upon § 3621 that plaintiff
No. 03-6502                 Dismas Charities, Inc. v. United States Dep’t of                               Page 8
                            Justice, Federal Bureau of Prisons


interests limitation apply most clearly where a provider of government services challenges the
reduction of benefits to a third party because the reduction decreases the demand for the provider’s
services. Thus in cases applying the zone-of-interests test, the Supreme Court has used as a
paradigm case the example of a transcript preparer who would lack standing to challenge an agency's
refusal to require its hearings to be on the record as required by statute. Nat’l Wildlife Fed’n, 497
U.S. at 883; see also NCUA, 522 U.S. at 498. The example is indistinguishable from Dismas’s
§3621 claim. Dismas has provided no hint that halfway houses are even arguably within the zone
of interests of the statute that it alleges gives BOP the option of placing prisoners in halfway houses.
At most, even assuming that Dismas is right on the merits of its arguments regarding § 3621, the
prisoners, not the halfway house itself, are within the statute’s zone of interests.
         It is true that the Supreme Court has found the zone-of-interests test to be particularly loose
in a series of cases culminating in NCUA, 522 U.S. 479. See Data Processing, 397 U.S. 150; Arnold
Tours, Inc. v. Camp, 400 U.S. 45 (1970); Investment Co. Inst. v. Camp, 401 U.S. 617 (1971); Clarke,
479 U.S. 388. Each of these cases involved competitors of federally chartered financial institutions
challenging actions by federal regulatory agencies permitting the regulated institutions to engage
in activities that hurt the competitive economic interests of the plaintiffs. See Data Processing, 397
U.S. 150 (agency had permitted national banks to offer data processing services); Arnold Tours, 400
U.S. 45 (agency had permitted national banks to provide travel services); Investment Co. Inst., 401
U.S. 617 (agency had permitted national banks to operate mutual funds); Clarke, 479 U.S. 388
(agency had permitted national banks to offer discount brokerage services); NCUA, 522 U.S. 479
(agency had permitted individual federal credit unions to expand to multiple unrelated employer
groups; suit brought by banks). The statutory bases for the plaintiffs’ challenges in these cases were
the federal statutes allegedly prohibiting the activity that the agency had permitted on the part of the
federally chartered institutions. In each case the Supreme Court found competitors of the federally
chartered institutions to be arguably within the zone of interests of the relevant statute, despite the
absence of statutory language indicating that the purpose of the relied-upon statutory limitation was
to protect the interests of competitors of the federally chartered institutions.
        The dissent in NCUA contended that the majority’s decision in that case effectively did away
with the zone-of-interests test. 522 U.S. at 505-09 (O’Connor, J. dissenting). The majority,
however, whose opinion we must of course follow, expressly eschewed such a conclusion. Id. at
494 n.7. The majority moreover distinguished rather than overruled a case in which the Supreme
Court had unanimously held that postal workers were not arguably within the zone of interests of
federal postal monopoly statutes. Id. at 498-99 (discussing Air Courier Conference v. Postal
Workers, 498 U.S. 517 (1991)). In Air Courier, postal employees were not permitted to challenge
a particular loosening of the postal monopoly by the Postal Service, because the purposes of the
postal monopoly statute at issue were solely to increase the revenues of the Post Office and to ensure
that postal services were provided in a manner   consistent with the public interest. Air Courier, 498
U.S. at 526-27; NCUA, 522 U.S. at 498-99.6 In distinguishing Air Courier, the NCUA majority
explained “that although the statute in question regulated competition, the interests of the plaintiff
employees [in Air Courier] had nothing to do with competition.” 522 U.S. at 499. In short, the
zone-of-interests test must still be passed, although there is something about competitor suits that
makes the test easier to pass.



ultimately relies as a basis for relief.
         6
          Our circuit has continued to apply the zone of interests test to preclude a comparable suit by government
employees. Courtney, 297 F.3d 455 (civilian employees working at a military base held to lack prudential standing to
challenge base decision to outsource work to private contractor).
No. 03-6502           Dismas Charities, Inc. v. United States Dep’t of                         Page 9
                      Justice, Federal Bureau of Prisons


        Two aspects of competitor suits may form the basis for treating them with particular
generosity. First, when the government enters the market by chartering specially favored or
subsidized market actors, any limit on the activity of such institutions may arguably have, as an
implicit purpose, the goal of not distorting the market more than necessary. Competitors would
arguably be within the zone of such an interest. Second, although not formally relevant, the absence
of competitor standing may render some agency actions effectively immune from judicial review.
When a regulatory agency permits a regulated party to do something previously prohibited, the only
party with Article III standing to challenge the government action may be the competitor. In NCUA
for instance, the Supreme Court went on to find that the agency had clearly violated the relevant
statute. Id. at 503. The violation would presumably have continued unabated in the absence of
competitor standing.
        The instant case does not involve competitor standing, and neither of the considerations just
mentioned applies to Dismas. First, in giving discretion to the BOP to place prisoners in CCCs
(assuming the correctness of Dismas’s legal assertions that underlie its arbitrary and capricious
argument), Congress was in no way limiting the market power of a subsidized market actor. In this
respect the case is much closer to Air Courier than to NCUA. Dismas does not even argue that
§ 3621 protected the market interests of CCCs. Second, unlike in competitor cases, for this alleged
violation there is a clear alternative plaintiff with Article III standing—a prisoner who is denied a
placement as a result of the BOP policy. Such a prisoner is obviously much more arguably within
the zone of interests of the grant of discretion said to reside in § 3621. In this respect, Dismas is
much closer to the transcript preparer in the Nat’l Wildlife Fed’n example than to the competitor
banks in NCUA.
       Because Dismas’s interests do not arguably fall within the zone of interests articulated above,
we agree with the district court that Dismas lacked prudential standing under § 3621(b).
B. Claim under § 553 of the Administrative Procedure Act
        Although the district court did not separately analyze the standing of Dismas to raise its
procedural claim against the BOP policy, it did dismiss all of Dismas’s claims. Neither party
separately addresses Dismas’s standing to raise such a claim, or the merits of the claim. We of
course may affirm on a ground not relied upon by the district court. United States v. Hudgins, 52
F.3d 115, 118 (6th Cir. 1995). While Dismas has standing to raise its procedural challenge to the
BOP policy, the procedures sought by Dismas are clearly not required by the APA, and we therefore
affirm on that alternative ground.
         Dismas has standing to challenge the BOP policy on the ground that notice and comment
rulemaking was required before the policy could be put into effect. First, Dismas has Article III
standing because, as the Supreme Court explained in Defenders of Wildlife, “[t]he person who has
been accorded a procedural right to protect his concrete interests can assert that right without
meeting all the normal standards for redressability and immediacy.” 504 U.S. at 572 n.7. The
procedural requirements of notice and comment prior to rulemaking, assuming that they are
applicable, certainly protect concrete interests of Dismas. If applicable, they give Dismas the chance
to argue to the BOP that its policy is wrong before the policy is adopted, and Dismas’s interest in
continuing to provide services to the BOP is certainly concrete. Dismas has Article III standing to
raise the § 553 argument because a plaintiff can enforce procedural rights “so long as the procedures
in question are designed to protect some threatened concrete interest of his that is the ultimate basis
of his standing.” Id. at 573 n.8; see also Sierra Club v. Glickman, 156 F.3d 606, 613 (5th Cir. 1998).
      Second, CCCs like Dismas are arguably within the zone of interests protected by the notice
and comment rulemaking requirements of the APA. Prudential standing to assert procedural
No. 03-6502                Dismas Charities, Inc. v. United States Dep’t of                                      Page 10
                           Justice, Federal Bureau of Prisons


protections depends on whom the procedural protections were designed        to protect. See Int’l Bhd.
of Teamsters v. Peña, 17 F.3d 1478, 1483-84 (D.C. Cir. 1994).7 The notice and comment
rulemaking requirements were intended to “assure fairness and mature consideration of rules of
general application.” NLRB v. Wyman-Gordon Co., 394 U.S. 759, 764 (1969) (plurality opinion).
In addition, one of the central purposes of the requirement of notice and comment is to give those
with interests affected by rules the chance to participate in the promulgation of the rules. Thus the
D.C. Circuit explained in National Soft Drink Assn. v. Block, 721 F.2d 1348, 1353 (D.C. Cir. 1983),
that the § 553 requirements ensure fair treatment for persons to be affected by regulations.
Similarly, the Fifth Circuit explained in U.S. Steel Corp. v. U.S. E.P.A., 595 F.2d 207, 214 (5th Cir.
1979), that § 553 is “designed to ensure that affected parties have an opportunity to participate in
and influence agency decision making at an early stage.” When an agency promulgates a regulation
that lessens government spending on goods or services offered by providers, those providers are
squarely within the zone of interests protected by the notice and comment requirements of the APA.
For instance, in Chocolate Mfrs. Ass’n. v. Block, 755 F.2d 1098 (4th Cir. 1985), chocolate
manufacturers challenged a federal Food and Nutrition Service (FNS) rule prohibiting the use of
chocolate flavored milk in the federally funded food program for women, infants and children. The
Fourth Circuit held that notice and comment procedures were required, and never questioned the
standing of the chocolate manufacturers to insist on such procedures under the APA. Id. This case
is not distinguishable, and CCCs are certainly at least arguably within the zone of interests of the
notice and comment rulemaking requirements of the APA. See also Career College Ass’n v. Riley,
74 F.3d 1265, 1276 (D.C. Cir. 1996) (colleges’ § 553 challenge to change in federal student
assistance regulations).



         7
           The D.C. Circuit in Int’l Bhd. of Teamsters upheld the standing of a truck drivers’ union to challenge a federal
rule requiring the recognition of Mexican commercial driver licences. 17 F.3d at 1483-84. Two procedural
challenges—ultimately rejected on the merits—were that the rule required notice and comment, and that the rule
amounted to a “trade agreement” requiring specific congressional authorization. In finding prudential standing, the D.C.
Circuit reasoned:
         Standing to assert procedural protections is thus derivative; a party within the zone of interests of any
         substantive authority generally will be within the zone of interests of any procedural requirement
         governing exercise of that authority, at least if the procedure is intended to enhance the quality of the
         substantive decision. Of course, a procedure might be aimed simply at giving some special class of
         persons a voice, in which case the interests of persons not in that class might be "so marginally related
         to or inconsistent with the purposes implicit in the [requirement] that it cannot reasonably be assumed
         that Congress intended to permit the suit." Clarke, 479 U.S. at 399. But the notice-and-comment
         provisions invoked by petitioner are not directed to any such parochial goal.
                   For the same reason, we think that the petitioner has standing to contend that the
         Implementing Rule is invalid because the underlying Memorandum of Understanding was never
         endorsed by Congress in accordance with the procedures established by the trade acts. The procedural
         requirement that trade agreements be subject to Congress's approval presumably was designed to let
         Congress double check the balance that the executive's trade negotiators strike between interests of
         the sort that the union advances and countervailing considerations, such as consumer interests in
         lower-priced products. Indeed, Congress specifically identified both employment opportunity and
         safety as domestic objectives that the executive's trade negotiators should take into account. 19 U.S.C.
         § 2901(b)(9)(B).
17 F.3d at 1484. This analysis supports the proposition for which we cite the case in the text, but arguably misstates the
proper analysis at one point by stating that “a party within the zone of interests of any substantive authority generally
will be within the zone of interests of any procedural requirement governing exercise of that authority.” As explained
above, the zone-of-interests test does not require examination of the substantive authority for the challenged agency
action, but of the basis for the challenge to the action. Whether the basis for the challenge is substantive or procedural,
it is that basis that must be looked to in order to see whether the plaintiff is arguably within the zone of its protection.
No. 03-6502               Dismas Charities, Inc. v. United States Dep’t of                                   Page 11
                          Justice, Federal Bureau of Prisons


        Affirmance is nonetheless required, however, because Dismas just as clearly fails to state
a claim under those requirements. The     rulemaking requirements of § 553 of the APA do not apply
to “interpretative rules.” § 553(a).8 Both    the Thompson and Sawyer memoranda, assuming that
either may be categorized as a “rule,”9 clearly fall in the category of interpretative rule. The
Attorney General’s Manual on the Administrative Procedure Act, persuasive authority on the
meaning of the APA, describes an interpretive rule as one “issued by an agency to advise the public
of the agency’s construction of the statutes and rules which it administers.” See Shalala v. Guernsey
Memorial Hosp., 514 U.S. 87, 99 (1995) (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 302 n.31
(1979)). The difference between legislative and interpretative rules “has to do in part with the
authority—law-making versus law-interpreting—under which the rule is promulgated.” Warder v.
Shalala, 149 F.3d 73, 80 (1st Cir. 1998) (quoting Levesque v. Block, 723 F.2d 175, 182 (1st Cir.
1983) (quotation marks omitted)). “For purposes of the APA, substantive rules are rules that create
law,” while in contrast “[i]nterpretive rules merely clarify or explain existing law or regulations and
go to what the administrative officer thinks the statute or regulation means.” First National Bank
v. Sanders, 946 F.2d 1185, 1188-89 (6th Cir. 1991) (quoting S. California Edison Co. v. Fed. Energy
Regulatory Comm’n, 770 F.2d 779, 783 (9th Cir. 1985)); see also Warder, 149 F.3d at 80 (quoting
Metro. Sch. Dist. v. Davila, 969 F.2d 485, 490 (7th Cir. 1992)) (“[R]ules are legislative when the
agency is exercising delegated power to make law through rules, and rules are interpretative when
the agency is not exercising such delegated power in issuing them.”).
        The distinction reflects the primary purpose of Congress in imposing notice and comment
requirements for rulemaking—to get public input so as to get the wisest rules. That purpose is not
served when the agency’s inquiry or determination is not “what is the wisest rule,” but “what is the
rule.” The interpretative rule exception reflects the idea that public input will not help an agency
make the legal determination of what the law already is. The D.C. Circuit, for instance, in applying
the interpretative rule exception, has “generally sought to distinguish cases in which an agency is
merely explicating Congress’ desires from those cases in which the agency is adding substantive
content of its own.” American Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1045 (D.C. Cir. 1987). Cf.
Sentara-Hampton Gen. Hosp. v. Sullivan, 980 F.2d 749, 759 (D.C. Cir. 1992) (“the ‘interpretative
rule’ exception was designed to provide agencies with a degree of flexibility where ‘substantive
rights are not at stake’”).
         It follows that the Thompson and Sawyer memoranda, assuming that either is a rule
otherwise subject to the notice and comment requirements of the APA, are paradigm examples of
interpretative rules. See Cohn v. Fed. Bureau of Prisons, 302 F.Supp.2d 267, 274-75 (S.D.N.Y.
2004); Skelskey v. Deboo, 332 F.Supp.2d 485, 489-90 (D. Conn. 2004); Fierro v. United States, No.
Crim. 01-100-SLR, 2004 WL 1454398, at *4 (D. Del. 2004). The memoranda each state that the
statutory interpretation by the OLC will henceforth be implemented. The Thompson memorandum
in its operative language relies specifically and directly on the unlawfulness of its previous practice



         8
          We assume, but need not decide, that the BOP policy is not exempt under the provision of § 553 exempting
“general statements of policy.” See generally Syncor International Corp. v. Shalala, 127 F.3d 90, 94-95 (D.C. Cir.
1997) (distinguishing “general statements of policy” from “interpretative rules” for § 553 purposes).
         9
          For purposes of § 553 analysis, we focus on the December 16, 2002 memorandum by Deputy Attorney General
Larry Thompson and on the December 20, 2002 memorandum issued by Federal Bureau of Prison Director Kathleen
Hawk Sawyer. There is no general requirement that agency policies require notice and comment. See United States v.
Cinemark, 348 F.3d 569, 580-81 (6th Cir. 2003). Instead, the requirement applies to rules. In this case, the only thing
that can possibly be identified as a BOP rule is the Thompson memo or the Sawyer memo. See 5 U.S.C. § 551 (4)
(“‘rule’ means the whole or a part of an agency statement . . . ” (emphasis added)). We assume without deciding that
the Thompson memo or the Sawyer memo is a “rule” for APA purposes.
No. 03-6502               Dismas Charities, Inc. v. United States Dep’t of                                      Page 12
                          Justice, Federal Bureau of Prisons


as determined by the OLC.10 Even more clearly, the Sawyer memorandum does not make any kind
of policy analysis or determine what is the better, or more effective, or less burdensome, rule.
Instead, the BOP changed its procedure because the “OLC . . . determined that the [BOP’s] practice
of using CCCs as a substitute for imprisonment contravenes well-established caselaw, and is
inconsistent with U.S.S.G. § 5C1.1.” Memorandum of BOP Director Kathleen Hawk Sawyer,
December 20, 2002, at 1. Clearly, the memo simply determines what the law is, and does so by
reliance upon a legal interpretation by the OLC. Notice and comment rulemaking procedures are
simply not designed as a means for agencies  to improve their legal analysis. And it is the agency’s
legal analysis that Dismas challenges.11
         We recognize that some district courts have found that the BOP policy required notice and
comment. Some of these cases rely on the idea that a rule is legislative rather than interpretative if
it is “binding” or “nondiscretionary,” and that the BOP policy, since binding, is not interpretative.
See Monahan v. Winn, 276 F. Supp. 2d 196, 213-14 (D. Mass. 2003); McDonald v. Fed. Bureau of
Prisons, No. 1:03-CV-235-RWS, 2003 U.S. Dist. LEXIS 14035, at *18-19 (N.D. Ga. Feb. 14, 2003).
The argument mistakes the extent to which a reviewing court is bound by a regulation with the
extent to which an agency is bound. It is true that an interpretative rule is not binding upon a court,
whereas a properly authorized legislative rule is so binding. But using that distinction, the BOP
policy is interpretative, because the BOP’s interpretation is not binding on reviewing courts, which
may of course disagree with the government’s statutory interpretation (as many have already done,
see Goldings, 383 F.3d at 28-29; Elwood, 386 F.3d at 847). An interpretative regulation is binding
on an agency, on the other hand, not by virtue of the promulgation of the regulation (as in the case
of a legislative regulation), but by virtue of the binding nature of the interpreted statute. Such a
binding nature cannot render a rule legislative, else every interpretative rule would become
legislative.
        Nor does the BOP memorandum lose its interpretative nature because of its substantial
impact, as implied by the district court in Iacaboni v. United States, 251 F. Supp. 2d 1015, 1040 (D.
Mass. 2003). The policies underlying the notice and comment requirement, and the apparent reasons
for the exception for interpretative rules, are unrelated to the substantial impact of a rule. A pure
statutory interpretation can have an enormous impact, yet be based entirely on statutory analysis for
which public input would be of minimal value. Our court has accordingly rejected substantial
impact as a basis for determining the applicability of the interpretative rule exception. See Friedrich
v. Sec. of Health and Human Servs., 894 F.2d 829, 836 (6th Cir. 1990) (stating that “[t]he extent of
the impact is not an indicative factor” in characterizing the nature of a rule); Sanders, 946 F.2d at


         10
           The memorandum does add a policy consideration in favor of the change in policy—the risk of
inappropriately favorable treatment of white collar criminals under the previous interpretation—but the operative
determination to change BOP practice is clearly based on the statutory interpretation made by the OLC.
         11
           In Gordon v. Shalala, 55 F.3d 101 (2d Cir. 1995), the Second Circuit came to a similar conclusion in a case
involving a determination by the Secretary of Health and Human Services to acquiesce in a Second Circuit opinion:
         plaintiff claims that the Ruppert Acquiescence Ruling had to have been publicly promulgated pursuant
         to the Administrative Procedure Act (the “APA”) in order to be effective. This argument is frivolous.
         The general rule on acquiescence rulings is that although they “do not have the force and effect of law,
         they constitute Social Security Administration interpretations of its own regulations and the statute
         which it administers . . . . The Ruppert Acquiescence Ruling was interpretive, not substantive. It did
         not create rights or impose obligations. It merely interpreted this Court’s mandate in Ruppert to the
         effect that imputed income must provide the SSI recipient with an “actual economic benefit.” It was
         not subject to the notice and comment requirements of the APA.
55 F.3d at 105.
No. 03-6502           Dismas Charities, Inc. v. United States Dep’t of                         Page 13
                      Justice, Federal Bureau of Prisons


1189 (noting that “the substantive impact test . . . has been disfavored recently by [the Sixth Circuit]
and other courts”). See also Alcaraz v. Block, 746 F.2d 593, 613 (9th Cir. 1984) (rejecting the
argument that “for the purposes of imposing notice and comment requirements on the agency for
a particular rule, we look to the ‘substantial impact’ of the rule”).
        Finally, the rule is not legislative simply because it departs from the BOP’s prior
interpretation of § 3621, as implied in cases such as Howard v. Ashcroft, 248 F.Supp.2d 518, 536
(M.D. La. 2003), and McDonald, 2003 U.S. Dist. LEXIS 14035, at *18-19. As the Second Circuit
has explained clearly,
       an interpretive rule changing an agency’s interpretation of a statute is not magically
       transformed into a legislative rule. If the rule is an interpretation of a statute rather
       than an extra-statutory imposition of rights, duties or obligations, it remains
       interpretive even if the rule embodies the Secretary's changed interpretation of the
       statute.
White v. Shalala, 7 F.3d 296, 304 (2d Cir. 1993) (citations omitted). Other circuits agree that “a
new position does not necessarily make a rule legislative rather than interpretive.” Metropolitan
School Dist. v. Davila, 969 F.2d 485, 490 (7th Cir. 1992) (citing as authority State of Michigan v.
Thomas, 805 F.2d 176, 182-84 (6th Cir. 1986); Alcaraz, 746 F.2d at 613-14; and American Postal
Workers Union v. United States Postal Service, 707 F.2d 548, 559-60 (D.C. Cir. 1983)). This court
accordingly has held that certain provisions of the Medicare Provider Reimbursement Manual were
interpretative and therefore not subject to notice and comment despite the plaintiff’s argument in that
case that the provisions had changed: “We also find unpersuasive St. Francis’s argument regarding
the Secretary’s ‘inconsistent’ interpretation of its regulations. As this Court has stated,
‘[a]dministrative agencies are not bound by their own prior construction of a statute . . . .’” St.
Francis Health Care Ctr. v. Shalala, 205 F.3d 937, 947-48 n. 11 (6th Cir. 2000) (quoting Crounse
Corp. v. ICC, 781 F.2d. 1176, 1186 (6th Cir. 1986)).
        It is true that once an agency gives a regulation an interpretation, notice and comment will
often be required before the interpretation of that regulation can be changed. See Shell Offshore Inc.
v. Babbitt, 238 F.3d 622, 629 (5th Cir. 2001); Alaska Prof’l Hunters Ass’n v. Fed. Aviation Adm’n,
177 F.3d 1030, 1033-34 (D.C. Cir. 1999). This is because once an agency has promulgated its own
regulation, a change in the interpretation of that regulation is likely to reflect the agency’s
reassessment of wise policy rather than a reassessment of what the agency itself originally meant.
The determination of wise policy—unlike legal interpretation—is the kind of determination for
which notice and comment procedures are particularly appropriate. However, when an agency is
changing its interpretation of a statute, it is much more likely that the agency is not trying to
determine what is the wiser rule, but rather what is the rule. Thus, in Alaska Hunters, the D.C.
Circuit explained that “an agency has less leeway in its choice of the method of changing its
interpretation of its regulations than in altering its construction of the statute” because “‘[r]ule
making,’ as defined in the APA, includes not only the agency's process of formulating a rule, but
also the agency’s process of modifying a rule.” 177 F.3d at 1034. Agencies in contrast cannot
modify a statute, and statutory interpretation can therefore more easily be distinguished from
legislative rulemaking. This is particularly so where, as here, the agency’s change in interpretation
resulted from an opinion by the OLC concluding that the agency’s interpretation of the statute was
unlawful.
        We take no position on the merits of Dismas’s legal challenge to the BOP policy. We hold
only that, under the interpretative rule exception, a rule that embodies a pure legal determination of
what the applicable law already is does not require notice and comment under APA § 553(b).
No. 03-6502         Dismas Charities, Inc. v. United States Dep’t of                 Page 14
                    Justice, Federal Bureau of Prisons


Because Dismas’s claim based on § 553 of the APA fails as a matter of law, the district court
properly dismissed that aspect of Dismas’s case as well.
       For the foregoing reasons, we AFFIRM the judgment of the district court.
