Role of agency rulemaking in regulating society
Rulemaking, under the administrative law, is the process which is used by the independent agencies and the executive for creation, regulation or promulgation (Gormley & Balla, 2012). Generally, the broad policy mandates are set by the legislatures through passing of statutes and then the agencies create regulations through the rulemaking, which is more detailed in nature (Scheb, 2002). A crucial role played in the rulemaking relates to the balancing of the public interest with the individual liberties (Mendes, 2014).
In the following parts, a discussion has been carried over the role played by the agency rulemaking in regulation of society. The formal steps of rulemaking have also been highlighted. A difference has also been drawn between the formal and other forms of rulemaking. This has been done to show the emphasis of balancing through rulemaking.
The agency plays a crucial role in the rulemaking. The rules are developed by the federal agencies and generally, the rulemaking is made by the authority of agency. Though, there are cases, where it is mandatory for the agency to create the rules through a court order or through the Congress. Even though the attention of the public is focused on the President and the Congress, but most of the work of carrying out the policies is carried on by the administrative agencies (Center for Effective Government, 2015).
The agency rulemaking helps in regulating of the society as it provides the detailed rules, which have to be followed by the members of society and also dictates the difference between what is right and what is wrong. It brings together the scientific and other kind of expertise over any particular policy and hence, the rules formed by the agencies are specified and practically applicable (Lussier & Sherman, 2013). Agency rulemaking has been the means through which the most far reaching regulations of the government have been created in the 20th century (DeLeo, 2008).
The rule making process can differ on the basis of a procedure adopted, but generally contains certain following steps (Beermann, 2010). These steps are integrated in nature as each stage is dependent on its preceding stage and cannot be skipped.
- The legal authority has to be attained at the very outset. The lifecycle of regulation is initiated when the statute is passed by the Congress.
- A proposal has then to be dratted, regarding the new regulation. And for the drafting of this, the people of agency are included, along with the experts on the relevant topic, the lawyers and the economists. Agency may also hold public hearings or get the advice of the stakeholders of experts through an “advisory committee”.
- A Regulatory Impact Analysis has to be done, which predicts the likely effects or impact of the new legislation.
- The next step deals with the drafting of an explanation, which has to accompany the new regulation. The proposed rule, along with this explanation is known as the draft Notice of Proposed Rulemaking.
- This prepared draft is then sent for the review of the OIRA or the Office of Information and Regulatory Affairs, which is in the Office of Management and Budget of the White House.
- The next step is to publish the proposal by the agency in the Federal Register.
- Once this is published, the comments of public are invited and the common duration for this is 60 days.
- The comments are then considered. And the final rule is drafted by the agency.
- This is followed by another White House review.
- The agency then publishes the final rule, along with the explanation.
- Even after thirty days of its publishing, the new regulation does not take effect. For the key regulations, the Congress has sixty days to review the same.
- The new regulation can also be challenged in the court, if anyone it can be established that the agency exceeded its power given by the congress, or made an unreasonable decision, or failed to consider something of which was vital.
- Upon its finalization, the rule becomes effective (Cornell University, 2017).
There is a difference in the type or manner of rulemaking. The manner in which, the rules have to be followed, if they have to be followed, govern the difference in the mannerism. The process described above was that of the formal rulemaking. In such rulemaking, the organic statute requires that the rules have to be made on record after the opportunity for hearing by the agency. There are four other modes of rulemaking and these include informal, hybrid, negotiated and publication. Notice and comment is the other name given to informal rulemaking and in this, there is no requirement of following a procedure in the organic statute and for this, the only thing required by APA is the notice and comment. The hybrid rulemaking is the one in which the specific procedural requirements are beyond the ones of notice and comment, but they do not rise to the level of formal rulemaking (Weaver & Araiza, 2013). Through the Administrative Procedure Act’s 5 U.S.C. §§ 561-570, the negotiated rulemaking is done (Gostin, 2008). The last one, i.e., the publication rulemaking contains of procedural and interpretative rules, which are promulgated through the publication in Federal Register.
Formal steps of the rulemaking process
The rule-making procedure has been given several exemptions. These include the Board of Public Works, Secondary Schools Activities Commission, Board of Probation & Parole and Board of Public Works. These bodies only need to file the final rule and have to set the effective date which is after a minimum of 60 days of filing with the Administrative Law Division. The State Board of Education and Workers’ Compensation Fund have to file their rules for public comment or hearing after a minimum of thirty days since it was filed with the official body. After this the comment period ends, the final file has to be filed after a minimum of thirty days (State of West Virginia, 2017).
The rules which are related to the receipt of public assistance; conduct of persons in military services; conduct of inmates or such other individuals who have been admitted to some public institution; and open seasons and weight, age, size, sex, bag and creel limits regarding the wildlife of a state; are only required to be filled in the register of the state and become effective on their filling (State of West Virginia, 2017).
In a similar manner, MSAPA follows the federal law as they are exempted from the rulemaking procedure. This exemption was supported by the drafters as in their view the members of the public are assisted due to the knowledge regarding how the agency looks forward to implementing an enabling legislation (Levin, 2010).
Conclusion
On the basis of the discussion carried above, it can be summarized that rulemaking is a crucial part in the administrative law. This process not only helps in the formulation of regulations, but also to the general public, by differentiating between the right and wrong manner of doing a thing. This is done as the regulations made through the rulemaking process are detailed in nature and have been formed, commented upon and evaluated by the experts of their field and the lawyers. These people scrutinize the regulations in detail and only provide such regulations which are practically applicable and relevant.
The above discussion also highlighted the manners in which a regulation can be formulated. The most common manner in this is the formal manner, as this follows a proper approach to the rulemaking process. However, there are times when the other manners of rulemaking, for instance, the informal, hybrid or publication rulemaking are used by the agency rule-makers. The discussion also highlighted, with requisite examples, the manner in which the rules are exempted in certain cases. From this analysis, it can be stated that the rule making balances the interests of the public with the individual liberties in a successful manner.
References
Beermann, J.M. (2010). Administrative Law. New York: Aspen Publishers.
Center for Effective Government. (2015). The Players in Rulemaking. Retrieved from: https://www.foreffectivegov.org/node/3462
Cornell University. (2017). What is rulemaking?. Retrieved from: https://regulationroom.org/learn/what-rulemaking
DeLeo, J. (2008). Administrative Law. New York: Delmar Cengage Learning.
Gormley, W.T. & Balla, S.J. (2012). Bureaucracy and Democracy, Accountability and Performance (3rd ed.). Washington DC: CQ Press College.
Gostin, L.O. (2008). Public Health Law: Power, Duty, Restraint. Los Angeles: University of California Press.
Levin, R.M. (2010). Rulemaking Under the 2010 Model State Administrative Procedure Act. Widener Law Journal, 20, p. 875.
Lussier, R.N., & Sherman, H. (2013). Business, Society, and Government Essentials: Strategy and Applied Ethics (2nd ed.). New York: Routledge.
Mendes, J. (2014). Rule of law and participation: A normative analysis of internationalized rulemaking as composite procedures. International Journal of Constitutional Law, 12(2), 370-401. DOI: https://doi.org/10.1093/icon/mou018
Scheb, J.M. (2002). An introduction to the American legal system (2nd ed.). New York: Wolters Kluwer Law & Business.
State of West Virginia. (2017). Exemptions to Rule-Making Requirements. Retrieved from: https://www.sos.wv.gov/administrative-law/rulemaking/Pages/exemptions.aspx
Weaver, R. & Araiza, W. (2013). Weaver and Araiza’s Black Letter Outline on Administrative Law. St Paul, MN: West Academic.
Order an Essay Now & Get These Features For Free:
Turnitin Report
Formatting
Title Page
Citation
Outline
