The confusion that occasionally surrounds regulations can result simply from grammar. We often use the word “law” to mean a statute or legislation passed by Congress. In addition, both Congressional statutes and agency regulations have “the effect of law;” they must be followed and there are penalties for not complying.


People also confuse regulations with other actions by the regulatory agencies themselves – studies, pilot projects and guidance. For instance, an agency can seek public comment on a proposed study or pilot project or a proposed guidance document, just as it seeks public comment on a proposed regulation.


Guidance documents assist people in applying existing regulations to real-world situations and do not have the force of law. Agencies use studies gather facts, often coupling them with a request for voluntary data submission. Pilot projects contain a waiver or adjustment of certain regulations to test how a different regulatory regime could work. They have legal requirements, but those requirements apply only to the project participants.


Under federal law, pilot projects cannot last longer than three years. Regulations, by comparison, have no end date, but they can change for three reasons: 1) new agency rulemaking; 2) new Congressional direction; or 3) court decisions.


As during the COVID-19 pandemic, agencies can waive or adjust regulations by an emergency order. This typically happens during natural disasters, such as floods and hurricanes. Emergency orders have a stated end date but they may be extended or adjusted when the underlying emergency continues. That extension requires a new statement from the regulatory agency. Because emergency orders give an exception to standard regulations, agencies include restrictions and limitations in the emergency declaration.


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