THE POLITICS OF LEGISLATIVE CURTAILMENT OF ADMINISTRATIVE RULEMAKING: OBSTACLES TO POLICE-PATROL OVERSIGHT

State Administrative Procedure Acts (APAs), like their federal counterpart, attempt to even the odds that citizens’rights will be protected as administrative agencies exercise quasi-legislative and quasi-judicial functions. North Carolina is one of several states which has recently attempted to constrain agency power in rulemaking and complaint adjudication. This is a case study of policy outcomes attained by the North Carolina General Assembly in its 1985 revision of the state's APA. Why did some state legislators’efforts to assume stricter oversight over administrative rulemaking fall far short of the kind of control and accountability they aimed for? We explore three types of obstacles to APA reform encountered in North Carolina. Each is relevant to other states. First, direct surveillance or “police-patrol” techniques of legislative oversight impose undesirable political costs on legislators. Second, there is an absence of (or categorical precedence is against) the adoption of such techniques. Third, executive-legislative branch conflict and complex separation of powers issues arise when state legislatures attempt to curtail administrative rulemaking in significantly new and restrictive ways.     

Federalism and nuclear waste disposal: The struggle over shared decision making

Traditionally the domain of federal agencies, authority to select sites for the disposal of commercial high-level nuclear wastes has recently been expanded to include a role for host states. State opposition to earlier siting efforts had demonstrated the dificulties federal agencies faced in resolving conflict between the local population bearing the costs and the dispersed population receiving the benefits. The new model defines the agency and the state as adversarial representatives of these competing interests. An outstanding weakness, however, is that it does not clearly specify who should speak for the state, and may actually promote intrastate conflict. The adversarial approach does not provide a generic solution to the problem of federalism, but it may prove useful at the state level for selecting disposal sites for low-level radioactive wastes and hazardous chemical wastes.     

Divided government and US federal rulemaking

Despite paying a great deal of attention to the effects of divided government on legislative outputs, scholars of American politics have surprisingly ignored the potential impact of divided government on bureaucratic regulatory outputs. In this article we argue that divided government should reduce the volume of federal agency rulemaking. We test this hypothesis against a data set covering 21,000 rules from 1983 to 2005. Our study is one of the first to analyze the determinants of federal bureaucratic rulemaking activity across such a long period of time. Our results demonstrate that during periods of divided government, agencies issue fewer rules and fewer substantively significant rules than they do during periods of unified government. These findings suggest that divided government impedes agency rulemaking.     

A COMPARATIVE ANALYSIS OF RULEMAKING PROVISIONS IN STATE ADMINISTRATIVE PROCEDURE ACTS

As the primary source of procedures that state agencies must follow, state Administrative Procedure Acts (APAs) structure administrative discretion in the promulgation of rules and regulations. While the federal APA has been studied extensively, much less has been written about state procedural statutes. This article describes the major rulemaking provisions in state APAs and provides a broad, comparative, and systematic understanding of these provisions. Our analysis yields three major findings. First, state procedural statutes vary considerably in the extent to which they structure administrative discretion in rulemaking. Second, adoption of these rulemaking provisions tends to vary in a systematic way, as states first incorporate due process provisions, and then adopt responsiveness and rationality provisions. Third, in the area of procedural regulatory reform, states have made considerable strides in reforming regulatory administration.     

Responsive bureaus,equity, and regulatory negotiation: an empirical view

Rulemaking agencies commonly delegate the implementation and enforcement of rules to affected parties, but they rarely delegate rulemaking authority. Regulatory negotiation is an example of this uncommon behavior. Compared to conventional rulemaking, regulatory negotiation is thought to be an attempt to make bureaucracy more responsive to affected stakeholders, especially when the rulemaking concerns politically complicated and technical issues. However, negotiation, while it may make bureaucrats more responsive, may also be less fair in that it is likely to result in relatively more responsiveness to interests supported by those with greater resources. This study presents empirical evidence that compares negotiated to conventional rulemaking processes at the Environmental Protection Agency in respect to both responsiveness and equality. The results uphold the expectation that negotiating rules appears more responsive than the conventional rule‐writing process. Furthermore, the results show inequality in both processes; outcomes of negotiated rules may be more unequal than outcomes of conventionally written rules. © 2002 by the Association for Public Policy Analysis and Management.     

Organizational Process,Rulemaking Pace,and the Shadow of Judicial Review

Scholars have long understood that structuring internal work processes into more hierarchical or team‐based arrangements has consequences for organizational outputs. Building on this insight, this research examines the relationship between how agencies organize their rulemaking routines and the resulting rules. Tracking the job functions of rule contacts for economically significant rules proposed over a four‐year period, the analysis demonstrates that expanding the breadth of personnel types closely involved in a rulemaking is associated with a reduction in the time it takes to promulgate the rule. However, increasing the pace at which rules are finalized is not without cost, as those completed faster appear more likely to be overturned when challenged in court. The article not only adds another dimension to empirical scholarship studying rulemaking, which has largely focused on how forces originating outside the agency affect rules, but also suggests the importance of considering competing priorities in designing rulemaking processes.     

Stakeholder governance of organ transplantation: A desirable model for inducing evidence-based medicine?

Medical governance should secure and apply appropriate expertise, accommodate stakeholder interests, and promote social values. The most common form of governance, public (agency) rulemaking by government agencies, usually involves supplementing in-house expertise through advisory committees. An alternative, private (stakeholder) rulemaking, involves delegating the authority for developing rules directly to stakeholders, who often command relevant expertise, including that arising out of tacit knowledge. The possible advantages and disadvantages of agency and stakeholder rulemaking in medical governance can be assessed both from what we know about these forms in general and from experience with a prominent example of stakeholder rulemaking; that is, governance of the US organ transplantation system. It appears that this governance has been exceptionally successful in promoting evidence-based medicine. The stakeholder role in the governance of transplantation could be replicated in other areas by creating meaningful stakes to engage stakeholders and by increasing isolation from legislative politics through an independent funding source and circumscribed oversight.     

Lessons Learned from Two Decades of Alternative Dispute Resolution Programs and Processes at the U.S. Environmental Protection Agency

Mediation, facilitation, and other alternative dispute resolution (ADR) techniques are being used in federal agencies, state and local governments, private-sector organizations, and among private citizens in an effort to prevent and resolve disputes in a timely, cost-effective, and less adversarial manner. The U.S. Environmental Protection Agency (EPA), one of the pioneers in the application of ADR processes and techniques to public policy disputes, recently announced that it plans to in-crease the use of ADR techniques and practices across all agency programs. This article reports the results of a four-part evaluation of the use of ADR in enforcement actions at the EPA during the last two decades. Funded by the Hewlett Foundation, this effort utilized in-depth telephone interviews, government statistics, and archival records. The four groups interviewed were EPA's alternative dispute resolution specialists, potentially responsible parties (defendants) to EPA enforcement lawsuits, mediators and facilitators to EPA cases, and agency enforcement attorneys who had participated in agency enforcement ADR processes. Concluding that there are generally high levels of satisfaction with the EPA's enforcement ADR program, this article examines the sources of obstacles and assistance to ADR efforts at the EPA, suggests ways in which the EPA might improve its ADR programs, and draws lessons from the EPA's experiences that may be helpful to other public programs or organizations.     

Public Information and Regulatory Processes: What the Public Knows and Regulators Decide

Because bureaucratic agencies may be less transparent in their decision processes than legislatures, most states have developed processes to incorporate input from regulated communities and other parties potentially affected by regulations. Administrative agencies may encourage democratic practices to increase legitimacy and accountability of the bureaucracy and improve decision‐making processes. However, rules governing the regulatory process vary by state, with some incorporating more open practices than others. Understanding these dynamics is increasingly important, as the rulemaking process has become central to policymaking over the past several decades, with a large portion of policymaking authority delegated to administrative agencies. Drawing from regulatory documents, rulemaking comments, media coverage, and interviews with regulators in 14 regulatory decision processes across five states, this study finds that while states vary in their approach to providing access to information, there are overriding patterns that reduce the role of citizens and the overall transparency of regulatory processes.     

The Puzzle of Private Rulemaking: Expertise, Flexibility, and Blame Avoidance in U.S. Regulation

The standard federal regulatory process in the United States involves notice and comment by government bureaus. This traditional agency model of public rulemaking faces difficulties in taking full advantage of the expertise of stakeholders, and it has been criticized as being slow and inflexible; therefore, it is not surprising that alternative institutional forms involving the delegation of rulemaking to stakeholders have appeared. Yet it is surprising that private rulemaking has been used to allocate valuable goods such as transplant organs. Why is private rulemaking used as an allocative institution of governance? The answer recognizes the advantages it offers in certain rapidly changing circumstances in which essential expertise inheres in the stakeholders, as well as the asymmetric political rewards involved in the allocation of highly valued goods, which create incentives for politicians to avoid blame by delegating substantive rulemaking authority to nongovernmental organizations.     

Testing the Policy Capacities of Budgetary Agencies: Lessons from Finance

The Commonwealth Department of Finance, together with the Treasury from which it was hived off in 1976, constitutes the central budgetary agency at the Australian federal level. For the purposes of this article, I identify Finance as a convenient working model of central budgetary agencies, at least in their traditional Australian incarnation. I accept that Finance is unlikely to be fully representative of all such Australian agencies, and I acknowledge that the federal government's annual budget is officially introduced into parliament by the Treasurer, and that the Treasury is deservedly regarded as the core budgetary agency. But my focus here is on Finance's special responsibility for the public management framework, and Finance's role in providing policy advice to government organisations on how to make the best use of budget funding. This article then presents the findings of a recent evaluation of selected policy-advising activities with the department.     

Intergovernmental Relationships and the Federal Performance Movement

Although implementation of the federal Government Performanceand Results Act (GPRA) has provided the framework for the federalperformance effort, other efforts have been undertaken withinfederal agencies to balance the two often conflicting imperatives:to provide states with flexibility and yet maintain a commitmentto performance outcomes that acknowledges the expectations ofthose who fund and authorize programs. This analysis seeks todevelop a typology to examine the ways that the federal governmenthas attempted to bridge the goals of funders with the demandsof those who implement programs. This article highlights sixdifferent approaches that have been taken recently within federalagencies: performance partnerships, incentives, negotiated measures,building performance goals into legislation, establishment ofstandards, and waivers.     

What Makes an Agency Independent?

The responsiveness of government agencies to elected officials is a central question in democratic governance. A key source of variation in responsiveness is agency structure. Yet scholars often view agencies as falling into broad structural categories (e.g., cabinet departments or independent commissions) or fixate on some features of design (e.g., “for cause” protections). I develop new estimates of structural independence based on new data on 50 different structural features of 321 federal agencies in the federal executive establishment. Using a Bayesian latent variable model, I estimate independence on two dimensions: limits on the appointment of key agency decision makers and limits on political review of agency policy. I illustrate the value of this new measure by using it to examine how structure affects political influence and how agency independence can vary over time.     

Presidential priorities,congressional control,and the quality of regulatory analysis: an application to healthcare and homeland security

Elected leaders delegate rulemaking to federal agencies, then seek to influence rulemaking through top-down directives and statutory deadlines. This paper documents an unintended consequence of these control strategies: they reduce regulatory agencies’ ability and incentive to conduct high-quality economic analysis to inform their decisions. Using scoring data that measure the quality of regulatory impact analysis, we find that hastily adopted “interim final” regulations reflecting signature policy priorities of the two most recent presidential administrations were accompanied by significantly lower quality economic analysis. Interim final homeland security regulations adopted during the G.W. Bush administration and interim final regulations implementing the Affordable Care Act in the Obama administration were accompanied by less thorough analysis than other “economically significant” regulations (regulations with benefits, costs, or other economic impacts exceeding $100 million annually). The lower quality analysis apparently stems from the confluence of presidential priorities and very tight statutory deadlines associated with interim final regulations, rather than either factor alone.     

Revenue Strategy on the Gold Coast: The Case of Stamford, Connecticut

This study investigates the effects of federal policy and budgetchanges during the Reagan years as well as the revenue strategiesof governmental and private, nonprofit agencies in Stamford,Connecticut. Systematic examination of agency budgets and interviewswith agency directors in 1982 found widespread anxiety aboutpossible revenue decline, but few departures from traditionalrevenue strategies. In Stamford, federal changes produced revenueproblems for only a few agencies, most of which went about "businessas usual" and did not experience a budget crisis. This situationremained unchanged in late 1985.     

Making Government Accountable: Lessons from a Federal Job Training Program

This article describes the evolution of a performance measurement system in a government job training program. In this program, a federal agency establishes performance measures and standards for substate agencies. The performance measurement system's evolution is at least partly explained as a process of trial and error characterized by a feedback loop: The federal agency establishes performance measures, the local managers learn how to game them, the federal agency learns about gaming and reformulates the performance measures, possibly leading to new gaming, and so on. The dynamics suggest that implementing a performance measurement system in government is not a one-time challenge but benefits from careful monitoring and perhaps frequent revision.     

Understanding State Rulemaking Processes: Developing Fracking Rules in Colorado,New York,and Ohio

Rulemaking is an integral component of environmental policy at both the federal and state level; however, rulemaking at the state level is understudied. With this research, we begin to fill that gap by focusing on rulemaking regarding the issue of hydraulic fracturing (fracking) in three states: Colorado, New York, and Ohio. This policy issue is well suited to begin exploring state‐level rulemaking processes because the federal government has left fracking regulation to the states. Through semistructured interviews with a range of actors in the rulemaking process across these states, we establish a foundation from which future research in this area may build. This exploratory research yields some valuable insights into the roles different stakeholders are playing in regulating fracking in these three states, and our findings may be useful for explaining state‐level rulemaking more generally.     

Setting the Regulatory Agenda: Statutory Deadlines,Delay, and Responsiveness

Congress imposes statutory deadlines in an attempt to influence agency regulatory agendas, but agencies regularly fail to meet them. What explains agency responsiveness to statutory deadlines? Taking a transaction cost politics approach, the authors develop a theory of responsiveness to deadlines centered on political feasibility to explain how agency managers map rulemaking onto calendar and political time. This theory is tested on all unique rules with statutory deadlines published in the Unified Agenda of Federal Regulatory and Deregulatory Actions between 1995 and 2012. The argument and findings about the timing and ultimate promulgation of rules have implications that reorient the study of the regulatory agenda from legal and political into more managerial terms.     

The States Come Marching In: Examining State Agency Influence on Federal Rules

Amidst congressional gridlock, administrative rulemaking is the main pathway for environmental policy making. Scholars have assessed the role of the institutions of government (the president, Congress, and the courts) and key interest groups (i.e., business and environmental interests) in shaping rulemaking outcomes. What is missing from this literature is an assessment of the role of key implementers, state environmental agencies. This research fills this gap by assessing the role and impact of state government agencies in three case studies of rulemaking at the Environmental Protection Agency (EPA). Based on original interviews and a public comment analysis, this research suggests that state agencies play an active and influential role in EPA rulemaking. And, in some cases, state agencies wield more influence than other interest groups. Interviewees argued that this influence stems from these agencies’ unique voice as an implementation collaborator. As a result, researchers should incorporate an assessment of the role of these interests to more effectively explain regulatory outcomes at the EPA and potentially across the bureaucracy.     

Beyond the categories: human service managers view the new federal aid

Social agency chief executives in six program areas--welfare, health, mental health, community action, model cities, and community mental health centers--were surveyed to determine their reaction to the recent revenue sharing/block grant efforts to decentralize the federal aid system. Despite their strong belief that social initiatives and values were advanced principally by federal action, and that excessive reliance on state and local officials could severely jeopardize social programs with weak constituencies, agency executives also recognized major weaknesses in traditional categorical grant policy and, to varying degrees, supported revenue sharing and block grant alternatives. Those agencies largely dependent on federal support for their survival--model cities, community action programs, and community mental health centers--tended to support the new aid efforts only reluctantly. Those agencies more fully integrated into the regular policy-making arrangements of local government--health, welfare, and mental health agencies--were considerably more positive in their endorsement of greater decentralization.