When the legislature deals with areas in statutes where expertise is required, it delegates the lawmaking function to administrative agencies.  An administrative agency’s rules can be categorized into one of four categories:  legislative rules; interpretive rules; procedural rules; and general statements of policy.

According to Administrative Procedure Act, every agency decision need not be in the form of a rule.  However, an agency can not adopt a government policy in lieu of a rule.

A legislative rule adopted by an administrative agency has the force of law and imposes new duties on affected parties.  Legislative rules also impose fresh rights and obligations on public.[i] A legislative rule creates a substantial impact on the people to whom the rule applies.  Therefore, legislative rules are also known as substantive rules.[ii] Legislative rules are binding on all individuals and courts.  These rules have the effect of law and can be enforced in courts.  A legislative rule does not leave the agency free to exercise discretionary power.[iii]

An administrative agency creates interpretative rules to clarify or explain existing laws or regulations.  An interpretative rule does not create a new law or modify existing ones.[iv] An interpretative statement indicates an agency’s understanding of a statute.[v] Administrative agencies create interpretative rules when there is confusion and disagreement over the meaning of a statute and when the ambiguity should be clarified.

A procedural rule is adopted by an agency to deal with the agency’s organization and method of operation.  Procedural rules do not change the agency’s basic regulatory standards.  The rules also do not change the rights or interest of parties involved.  However, procedural rules create or alter the procedure in which parties present themselves or their ideas before an agency.[vi] Procedural rules can be substantial in nature when an alteration in a procedural rule has a substantial effect on a party’s rights and duties.

Agency policy statements operate as a guide to an administrative agency’s exercise of discretion.[vii] Agency policy statements are not enforceable because they are flexible.  A policy statement of an administrative agency does not have a binding effect.  An agency’s general statement of policy differs from a legislative rule because a policy statement is neither a rule nor a precedent.  A policy statement merely announces to the public the policy which the agency hopes to implement in future adjudication.

[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)

[iv] Paralyzed Veterans of Am. v. West, 138 F.3d 1434 (Fed. Cir. 1998)

[v] First Nat’l Bank v. Sanders, 946 F.2d 1185 (6th Cir. Tenn. 1991)

[vi] Chamber of Commerce of the United States v. United States DOL, 174 F.3d 206 (D.C. Cir. 1999)

[vii] Home Builders Ass’n of Chester & Del. Counties v. Commonwealth, 828 A.2d 446 (Pa. Commw. Ct. 2003)