The Rulemaking Process

In Illinois, like in other places in the U.S., there are two main groups in the government: one that makes the laws (the legislative branch) and another that puts these laws into action (the executive branch, which includes various government departments and agencies). (The judicial branch, which is made up of the court system, is a third branch but is less relevant to this topic.) The idea is simple: lawmakers determine what should be done and the executive branch does it, using the money the lawmakers provide. This concept is something many of us learn in school, and it's mostly correct.

However, this explanation misses a key point about how government works. The legislative and executive branches often want different things and have different goals. Plus, it's tough for the lawmakers to predict every single situation where their laws will be used or how they'll be applied.

This leads to what social scientists call the "principal-agent problem." Imagine the government as a business: the lawmakers (the "principal") are like the boss who tells the employees (the "agent," in this case, the executive branch) what to do. But since the boss and the employees are different people, how does the boss make sure the employees do exactly what they're told, especially in situations the boss didn’t specifically think about?

The solution? The lawmakers set very clear and detailed rules. These guidelines are meant to keep the executive branch on the right path, no matter what unexpected things happen when they're applying the laws.

The goal of a bureaucracy is not to make your life more complicated, though that’s often how it seems. A properly functioning bureaucracy will have neutral competence--to be good at doing what it's supposed to do and to treat everyone fairly. When bureaucrats have to make decisions, they need to have clear rules for how to make those decisions so that they're fair and unbiased--so that the intent of the law is carried out accurately in any situation that might arise. To achieve this, regulation writers often have to give very clear instructions, even if they seem a bit boring.

By now, you may have heard terms like “legislation”, “law”, “rule”, “rulemaking”, or “regulation” thrown around without being defined or given context. Let’s try to do that:

“Legislation” (or, sometimes, “a bill”) refers to a proposal for a new or revised law that is voted on by members of the legislature. Once both the House and Senate pass it and it is signed by the Governor, “legislation” becomes a “law”. In Illinois, these can be found on the Illinois General Assembly’s website.

Example: Representative Jones reads about a child who drowns in a neighbor’s swimming pool, and proposes legislation that says that swimming pools must be surrounded by fences. The legislation is passed by both houses and the governor signs it into law.

A “rule” (or sometimes “regulation”, but we say “rules” when we are talking about the process in Illinois) is a bureaucratic agency’s more detailed explanation about how a law should be followed. Often rules constrain the actions of people or businesses by telling them what to do or not to do, but more often they constrain the actions of the bureaucracy by explaining the way that the law is to be carried out so that the bureaucracy cannot make arbitrary decisions. Under Illinois law, any agency requirement that prescribes law or policy affecting people or entities outside that agency is considered to be a rule [5 ILCS 100/1-70]. All the rules that are currently in effect can be found in the Illinois Administrative Code.

Example: The Department of Public Health proposes a rule that says that fences must be at least five feet high and made of metal with openings no larger than 4 inches wide. The rule explains the process the Department must follow to enforce these rules and establishes a process for pool owners to appeal the Department’s decision.

A “rulemaking” is the way a rule is adopted, amended, or repealed. In Illinois, the rulemaking process is established in the Illinois Administrative Procedure Act [5 ILCS 100].

Once the Second Notice is accepted by JCAR, another 45-day clock starts. During this period, JCAR must consider the proposed rule.

JCAR will evaluate the rulemaking. Here are some of the substantive standards it will apply:

• Is the rulemaking consistent with the statutory authority on which it is based?
• Has the agency has followed all necessary regulatory flexibility requirements in proposing rule?
• Has the agency considered alternatives to the rule that would also be consistent with underlying statute?
• Is the rule designed to minimize economic impact on small businesses?
• If the rule gives discretionary power to the agency, does it—as precisely and clearly as practicable—describe the standards under which this discretion will be exercised?

Between the start of the 2^nd Notice Period and the JCAR meeting, there’s often negotiation between JCAR and the agency to clean up any remaining issues with the rulemaking.  Often, JCAR and agency will agree to make changes to rulemaking (Second Notice Changes) or will make further agreements regarding action which the agency will take after this rulemaking is adopted (for example, updating data or clarifying a point that was unclear but not worth derailing a rulemaking over).

JCAR can…

1. Issue a certificate of no objection (which allows the agency to file for adoption before the 2^nd Notice Period formally expires),
2. Do nothing (which allows the agency to proceed after the 2^nd Notice Period expires (whatever’s left of the 45 days after the JCAR meeting),
3. Issue a recommendation,
4. Object to the rulemaking (an Objection signals that JCAR believes there are serious problems with the rulemaking, but does not stop the agency from adopting it), or
5. Issue a filing prohibition, which explicitly bars the agency from adopting or enforcing the proposed rule. 8 of the 12 JCAR members must vote in favor of a filing prohibition for it to pass.

The rule becomes effective once it has been filed with the Secretary of State. A notice of the adopted rule will be published in the Illinois Register after that.