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Legislative Rules

Legislative rule is one of the categories of rules developed by administrative agencies in the exercise of lawmaking powers.  The federal Administrative Procedure Act (APA) provides guidelines to administrative agencies in proposing and enacting rules.  Administrative rulemaking is the process by which administrative agencies adopt rules that have the force of law.  Sometimes, when administrative agencies possess the expertise and specialization to deal with certain matters, the legislature delegates its rulemaking power to the agencies.

According to the federal APA, administrative rules are differentiated into legislative rules, interpretive rules, procedural rules, and general statements of policy.  However, an agency’s rule has the same impact on regulated parties whether it is legislative, interpretive, procedural, or general statements on policy.

A legislative rule is a rule adopted by an administrative agency according to the procedures laid down by the APA.  This rule has the force of law and imposes new duties on affected parties.  A legislative rule is created in concurrence with the legislature’s intention.  An administrative agency creates a legislative rule for the proper implementation of a general statutory provision.

Through legislative rules, administrative agencies provide new law, rights, or duties which bring a change in existing laws.  Legislative rules also impose fresh rights and obligations on public.[i] Administrative rulemaking in the form of legislative rules creates a substantial impact on the people to whom the rules apply.  Therefore, legislative rules are also known as substantive rules.[ii] Legislative rules are generally implementary rules to existing laws.

Legislative rules are binding on all individuals and courts.  These rules have the effect of law and can be enforced accordingly.  The primary criterion to distinguish a legislative rule from the other rules is its binding effect on courts and individuals.  A legislative rule does not leave the agency and its decision makers free to exercise discretionary power.[iii]

[i] Citizens for Better Forestry v. United States Dep’t of Agric., 481 F. Supp. 2d 1059 (N.D. Cal. 2007)

[ii] Williams v. Van Buren, 117 Fed. Appx. 985 (5th Cir. Tex. 2004)

[iii] Community Nutrition Institute v. Young, 818 F.2d 943 (D.C. Cir. 1987)

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