When a legislature creates an administrative agency, the agency has to develop rules as part of its function. Agencies like the Environmental Protection Agency or the Commission on Civil Rights have to follow a procedure for making new rules. What the general public need to understand about this procedure is that it calls for the general public’s participation.
Creation of an Agency
Congress passes a statute that creates an agency to regulate a specific part of society or to accomplish a specific goal or task, like during the Roosevelt administration, when the legislature created Social Security in 1935. The statute will explain how and why the agency is being created.
Once the agency is created, it cannot act outside of the restrictions of power the statute has given the agency. The agency then sets off to create the rules and regulations it will enforce. This procedure is governed by the Administrative Care Act, and ensures that all proposed and final rules are posted on something called the Federal Register.
This process is extensive because a rule must go through many steps before it can be enforced. First the agency must look at it’s role given by congress and then look at many other variables to see how the rules are going to affect that sector of society.
After careful analysis and observation where the needs for rules exist. It’s time to get started writing and proposing a rule.
Proposed Rules and Public Comments
After the agency has researched and met with interest groups involving a rule, they write it up and propose it on the Federal Register (federalregister.gov). This site gives the public access to read the proposed rule. The agency poses a 30-60 day time for the public to comment on the rule. Comments can be mailed but generally agencies prefer electronic comments that can be posted on Regulations.gov.
This phase of the rule making process is the most important for the public to understand because it is where the public has a voice in determining the regulations we all have to abide by. The agency does not pass a rule based on how many interest groups or public comments are in support of the rule, but instead, must use data and reasoning to address concerns and prove that the rule will be helpful to the general public in that realm of society.
The Final Rule
The agency must then post the final rule with a summary and an explanation of why the rule is necessary. They must also show that they have the authority to make the rule. All final rules can be found on the Federal Register and go into effect usually within 30 days of being published.
While this may seem like a small part in the overall process of rule making, over the last century, administrative law has taken over the way businesses are run, farmers farm, restaurants perform, and schools are developed and maintained. The inclusion of electronic rule making on Regulations.gov and the Federal Register gives the public more accessibility and capability to involve themselves in the process than ever before in U.S. History.
Here is a link to a more detailed explanation of the rulemaking process and instructions of how you can get involved today.
Jeremy Smith writes for The McMinn Law Firm in Austin, Texas. Jeremy is ready to get more involved in agency regulation.