Rulemaking is a process for developing and issuing federal regulations. The process of rulemaking can lead to the issuance of a new rule, an amendment to an existing rule, or the repeal of an existing rule.

There are three types of rules: legislative, non-legislative and procedural. The three basic types are outlined more in-depth, as follows:

1. Legislative rules implement a statute. They are legally binding on the agency, the public, and the courts. 

2. Non-legislative are “guidance” focused with two subtypes: 

   1. interpretive rules which elucidate agency positioning or interpretation on a myriad of topics to the public and

   2. policy statements which tell the public how the agency plans to exercise its authority 

3. Procedural rules also have two subtypes: 

   1. management or personnel rules which involve the running or supervising of the agency’s business and

   2. organization or practice rules which describe the agency’s structure and functions and the way in which its determinations are made.¹

An agency cannot issue a legislative rule unless it is provided the authority to do so by statute. The statutory delegation can range from broad discretionary authority to a very specific mandate. an agency may decide to initiate the rulemaking process due to their statutory mandate, in response to a problem or petition, or due to another office or agency’s recommendation.¹ 

The process for creating federal regulations generally has three main phases:

1. Initiating rulemaking actions

2. Developing proposed rules

3. Developing final rules²

Within each step in the rulemaking process there are a number of actions agencies are required to complete; for example in developing the proposed and final rule, an agency must conduct internal and interagency reviews, and before publishing final rules, there must be an opportunity for public comments.²

1. Rulemaking Process | US Department of Transportation. Transportation.gov. https://www.transportation.gov/regulations/rulemaking-process#rulemaking. Published 2021.

2. Federal Rulemaking. Gao.gov. https://www.gao.gov/federal-rulemaking.