What is a rule?
Congress writes our laws, and then federal departments and agencies use authority granted to them by Congress to interpret or provide more detailed specifications for those laws. The agency process of developing, changing, or eliminating those more detailed agency specifications is generally referred to as the rulemaking process.
The rulemaking process takes different forms at different agencies, even at different programs within an agency. The most common type of rulemaking process is known as informal rulemaking, which may seem surprising given its many formal procedures. Informal rules are usually finalized after many steps, including publication of a draft rule on which the public can comment. Those comments are considered, and then the agency finalizes the rule.
Once the rulemaking process ends, final rules are added to the U.S. Code of Federal Regulations (www.ecfr.gov). These and other types of federal rules usually apply broadly to the future actions of the general public.
Is it “rule” or “regulation”?
- “Rule” and “regulation” are commonly and acceptably used interchangeably. In fact, the main Executive Order that governs the rulemaking process defines the two words together, as one term (EO 12866 § (3)(d)).
- That said, the main law that governs the rulemaking process, the Administrative Procedure Act, uses the word “rule,” and that term is then largely incorporated by reference in the Congressional Review Act. It’s also used by the Federal Register, which publishes draft and final rules, along with many other regulatory actions.
- By “regulations,” some mean all rules in the Code of Federal Regulations, or those plus other kinds of rules.
What is not a rule?
- Executive orders, presidential memoranda, and other presidential directives are generally not regarded as rules, though such actions often begin or formalize existing agency efforts to develop new rules.
- Guidance documents may or may not constitute “rules,” depending largely on whether they bind future actions of the public. For purposes of the CRA, “rule” is defined broadly to include key guidance documents.
- GAO can be asked to determine whether specific actions, including guidance documents, are “rules” for purposes of the CRA, which looks back to the APA. GAO has ruled differently on different types of guidance
Other types of rules
Rules are occasionally issued as interim final rules, which means the agency has “good cause” for the rule to become final and effective without first going through notice-and-comment. These immediately final rules often still accept comments, and agencies often come back later and issue final rules that respond to those comments.
Many interpretive rules, agency management rules, guidance, and other actions also do not go through ordinary notice-and-comment. Many of these actions have agency-specific drafting, publication, and comment processes.
Other important, often highly specialized types of rules include formal rulemakings, which can include on-the-record hearings and other trial-like procedures; negotiated rulemakings, which are drafted with the help of formal stakeholder committees; direct final rulemakings, which allow less controversial rules to become final and effective more quickly unless a negative comment is received, forcing the rule back into ordinary notice-and-comment procedures; and hybrid rulemakings, which combine the features of multiple rulemaking processes.
