By Tracy Waller, MPH, Esq.
Unsure of how the Rulemaking Process works in The United States? Unclear of the difference between a law and a regulation? We’ve got you covered with this plain language guide to how the process works and definitions for all the words we don’t use in everyday life.
**Words in bold are collected in the glossary at the end of the document**
What are administrative agencies?
Administrative agencies are groups that make and enforce rules to help explain and carry out the laws made by Congress. These rules are like instructions that tell people and businesses how to follow the law.
Laws are basically like the rules for the country, but they can be a little hard to understand. To make sure everyone follows the rules, administrative agencies help explain and make sure people follow them.
These groups can have different names like ‘boards’, ‘commissions’, or ‘departments.’
For example:
- The Department of Justice (DOJ) makes sure that people follow the law.
- The Food and Drug Administration (FDA) makes sure that food and medicine are safe to use.
- The Social Security Administration (SSA) helps people get benefits when they retire or are disabled.
Some agencies are really special and are created by Congress. Congress are the people we elect that represent our city and state. They work mostly on their own without being controlled by the president. These are called independent regulatory agencies.
For example:
- The Securities and Exchange Commission (SEC), which watches over the stock market to make sure companies play fair with money.
- The National Labor Relations Board (NLRB), which helps make sure workers and employers follow fair rules.
- The National Council on Disabilities (NCD), which helps improve life for people with disabilities.
So, these agencies help take care of the rules and make sure everyone plays fair!
How are administrative agencies created?
An administrative agency is a government group that Congress creates by passing a law. This law explains what the agency is supposed to do, what powers it has, and what rules it can make in a certain area. The agency is given some of Congress’s power to create and enforce rules in its area of expertise.
For example, the Department of Health and Human Services (HHS) has 13 operating divisions. Of these agencies, the Administration for Community Living (ACL). ACL helps older adults and people with disabilities live independently and participate fully in their communities. They provide funding for services and support, conduct research, and promote policies that help these individuals live where they choose and with whom they choose.
What is the difference between a law and a regulation?
- A law is made by Congress. It starts as a bill, which is a proposal for a new rule, and once both the House of Representatives and the Senate agree on it, the president signs it into law. Laws tell people what they can or cannot do. For example, a law might say that people cannot drive over a certain speed limit.
- A regulation, on the other hand, is made by agencies (like the Department of Justice or the Food and Drug Administration). These agencies are part of the executive branch of the government, which is separate from Congress. Regulations explain how the laws should be carried out. For example, a law might say you can’t drive faster than 65 miles per hour, and a regulation might explain the exact speed limits on different roads or how to measure speed limits.
Even though laws and regulations are created in different ways, regulations have the same effect as laws once they are in place. The delegation doctrine allows Congress to give agencies the power to make these regulations, so they can fill in the details on how the law should be followed.
Laws are made by Congress and tell you what’s allowed or not, while regulations are made by agencies and tell you how to follow those laws.
How are regulations created?
Regulations are created through a process set by the Administrative Procedure Act (APA), which makes sure that agencies follow a fair and clear procedure when making new rules. Here’s how it works:
- Propose a Rule: An agency, like the Department of Health and Human Services (HHS), decides it needs a new rule. For example, the HHS might propose a regulation to carry out healthcare laws under the Affordable Care Act (ACA).
- Publish the Proposed Rule: The agency publishes the proposed rule, so everyone knows what they’re thinking about doing. This makes it public and gives people a chance to see the changes before they happen.
- Comment Period: People, businesses, or groups can then comment on the proposed rule. They might say if they like it, dislike it, or suggest changes. This part gives everyone a chance to participate in the decision-making process.
- Final Rule: After reviewing the comments, the agency might make changes to the rule. Then, they adopt and publish the final rule. This is the version that becomes official.
So, in short, regulations are created by first proposing them, getting feedback from the public, and then finalizing and publishing the rule once it’s ready. This process helps ensure fairness and gives people a chance to share their thoughts.
What is the notice and comment period and what does rule making mean?
Rulemaking is the process where agencies create, change, or remove rules, also called regulations. These rules help explain how laws should be followed and put into action.
When an agency wants to make a new rule, change an old one, or get rid of a rule that’s no longer needed, they go through the rulemaking process. This process often involves a few steps:
- Proposal: The agency suggests a new rule or changes to an old rule.
- Public Feedback: People or organizations can comment on the proposal and share their thoughts.
- Final Rule: After reviewing the feedback, the agency might make changes and then officially put the rule in place.
So, rulemaking is how agencies decide the specific details of how laws will be carried out, and it can result in brand-new rules, updated rules, or the removal of rules that are outdated.
Definitions:
- Delegation doctrine: A rule that allows one part of the government to give some of its powers to another part. By doing this, the government can delegate certain tasks to different agencies or officials to help get things done.
- Executive branch: The part of the government that makes sure laws are followed and runs the day-to-day work of the country. In the United States, the leader of this branch is the president. The president, along with help from the vice president and the Cabinet, work to keep the country safe, manage the military, and handle relationships with other countries.
- Federal Register: The official book the federal government uses to put rules, proposed rules, and public notices. It is published every weekday, Monday through Friday, except on federal holidays.
- Law: Laws tell people what they can or cannot do. A law is made by Congress. It starts as a bill, which is a proposal for a new rule, and once both the House of Representatives and the Senate agree on it, the president signs it into law.
- Legislative branch: The part of the government that makes the laws. In the United States, this branch is called Congress, which is made up of two parts: the Senate and the House of Representatives. Congress discusses ideas, votes on these ideas, and if most people agree, the ideas become laws that everyone has to follow.
- Regulation: A rule made by agencies to help enforce laws.
- Regulatory agency: A government group that makes and enforces rules. They can also give out licenses and protect people. These agencies are set up by lawmakers at the federal, state, and/or local level. These agencies make sure everyone follows the laws passed by Congress.
- Rulemaking: The process where agencies create, change, or remove rules, also called regulations. These rules help explain how laws should be followed and put into action.
- Statutory law: Written law passed by lawmakers (Congress) and signed by the president.
