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Publication rulemaking

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Publication rulemaking, in the context of administrative law, is a rulemaking procedure that allows federal agencies to bypass the informal rulemaking process and directly implement certain rules through publication in the Federal Register. These rules, such as general agency policies, interpretive rules, and procedural rules, do not carry the force of law and cannot create or modify regulations. Instead, rules promulgated through publication rulemaking serve to provide guidance or clarification regarding the application of existing rules.[1][2]

Background

See also: rulemaking, informal rulemaking and formal rulemaking

Publication rulemaking occurs when an agency is permitted to forgo informal rulemaking and, instead, promulgate a rule directly through publication in the Federal Register. U.S. Code § 552(a)(1) and § 552(a)(2) allows for publication rulemaking in the case of certain rules that U.S. Code § 553 exempts from the informal rulemaking process. According to the Office of Information and Regulatory Affairs (OIRA), this category of exempt rules includes:[1][3][4]

“
  • Rules concerning military or foreign affairs functions
  • Rules concerning agency management or personnel
  • Rules concerning public property, loans, grants, benefits, or contracts
  • Interpretive rules
  • General statements of policy
  • Rules of agency organization, procedure, or practice
  • Nonsignificant rules for which the agency determines that public input is not warranted
  • Rules published on an emergency basis[3][5]
 ”

Rules promulgated through publication rulemaking, such as general agency policies, interpretive rules, and procedural rules, do not have the force of law and cannot create or modify regulations. Rather, these publications are made available to the public in order to provide guidance or clarification regarding the application of existing rules.[2][6]

See also

External links

Footnotes

  1. ↑ 1.0 1.1 Duke Law Review, "The Rulemaking Continuum," accessed August 28, 2017
  2. ↑ 2.0 2.1 Rocky Mountain Mineral Law Foundation, "REGULATION WITHOUT RULEMAKING: THE FORCE AND AUTHORITY OF INFORMAL AGENCY ACTION," accessed August 28, 2017
  3. ↑ 3.0 3.1 Office of Information and Regulatory Affairs, "Reg Map: Step Three," accessed August 28, 2017
  4. ↑ Legal Information Institute, "5 U.S. Code § 552 - Public information; agency rules, opinions, orders, records, and proceedings," accessed August 28, 2017
  5. ↑ Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
  6. ↑ Center for Effective Government, "Interpretive rule," accessed August 28, 2017
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