What is a rule?
The statutory definition (5 MRS sec. 8002 sub-sec. 9) is important because it triggers the application of the rulemaking procedures as described below. There are two parts to the definition of "rule." The first describes a "rule" in broadly inclusive terms:
"...the whole or any part of every regulation, standard, code, statement of policy, or other agency statement of general applicability, including the amendment, suspension or repeal of any prior rule, that is or is intended to be judicially enforceable and implements, interprets or makes specific the law administered by the agency, or describes the procedures or practices of the agency."
What an agency calls its pronouncements is not significant. It is the impact, not the terminology, which determines the existence of a rule. If the statement:
- applies generally to persons outside the agency;
- is intended to have the same legal force as a statute, so that compliance could be compelled; and
- implements the law administered by the agency or describes its procedures,
then it is a rule. Since amendment, suspension or repeal of a rule may have as important an effect as the adoption of a new rule, these actions are also "rules" in the sense that the full provisions of the A.P.A. law apply.
The second part of the statutory definition is a series of exclusions designed to clarify the broader concept. The term "rule" does not include:
- Policies or memoranda concerning only the internal management of an agency and not judicially enforceable;
- Advisory rulings issued under sub-chapter III of the A.P.A. law;
- Decisions issued in adjudicatory proceedings; or
- Any form, instruction or explanatory statement of policy which is not judicially enforceable, intended solely as advice to persons in determining, exercising or complying with their rights, duties, or privileges.
Consult a staff attorney or the Office of the Attorney General in cases where the status of agency statements is uncertain.