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.     

Credible commitment without independent regulatory agent: Evidence from the Security Council's United Nations Compensation Commission

Credible commitment problems arise whenever decisions made according to short‐term incentives undermine long‐term policy goals. While political actors can credibly commit themselves to their long‐term policy goals by delegating decisions to independent regulatory agencies, the member states of international institutions rarely sacrifice control over regulatory decisions. Against the backdrop of the United Nations Compensation Commission established by the Security Council to settle claims on damage from the Iraqi occupation of Kuwait, we present an institutional arrangement that promises to credibly commit member states to their previously defined interests without excluding them from the decision process. It separates the stages of rulemaking and rule application, and is reinforced by conditional agenda‐setting of an advisory body. We probe the theoretical claim with evidence from a unique data set that shows that the Commission settled compensation claims in a remarkably consistent way. The arrangement provides a blueprint for comparable regulatory tasks in many areas of international, European, or domestic politics, in which independent regulation is not feasible.     

Are they really so different? Climate change rule development in the USA and UK

Climate change is an increasingly complex and global environmental issue. As a result, scholars have begun to compare the efforts of specific countries such as the UK and the USA in dealing with climate change. However, missing within this comparative literature is a discussion of the important role that administrative agencies play in implementing climate change policy through rulemaking. More specifically, it is unclear how administrative processes may impact or explain variations in the policy implemented within a given country. In fact, it has been over 25 years since Vogel's work compared the regulatory processes of the USA and UK. As a result, this paper's interviews with agency rule writers in both countries provide an updated comparison of their rulemaking processes, which is essential to understanding why countries may vary in the climate change policy they implement. Copyright © 2014 John Wiley & Sons, Ltd.     

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.     

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.     

Negotiated rulemaking in practice

Until recently, parties interested in rulemaking by federal agencies were forced to voice their views primarily through adversarial procedures. An alternative, negotiated rulemaking, was proposed by the Administrative Conference of the United States (ACUS) in 1982. Since then, negotiated rulemaking has been used four times by federal agencies. The four completed negotiations show that negotiated rulemaking permits affected interests to retain greater control over the content of agency rules, while ensuring fairness and balance. It also permits agencies to obtain a more accurate perception of the costs and benefits of policy alternatives than can be obtained from digesting voluminous records of testimonial and documentary evidence presented in adversarial hearings. This article summarizes the results of a recently completed report prepared by the author for the Administrative Conference. It reviews the genesis of negotiated rulemaking, presents a framework within which to understand dynamics of the negotiation process and related administrative law issues, and presents recommendations for future agency use of negotiated rulemaking recently adopted in substance by the Administrative Conference.     

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.     

Public policy's bibliography: The use of research in US regulatory impact analyses

Major US federal regulatory decisions are developed and justified using regulatory impact analyses (RIAs) mandated by executive order. We examine the scientific citation activity in RIAs, a unique effort that we believe holds significant potential for understanding the use of science in policymaking. This paper reports preliminary findings from collecting and examining scientific citations in 104 RIAs from 2008–2012. We present evidence indicating that some agencies make extensive use of science in RIAs, that there is substantial variation in use across agencies, and show variation across journals and disciplines cited by regulatory agencies. Finally, we present analysis showing that regulatory policymakers make greater use of research published in highly cited scholarly journals. We conclude by outlining several future directions for research using these data.     

Between regulatory field structuring and organizational roles: Intermediation in the field of sustainable urban development

Recent contributions in the domains of governance and regulation elucidate the importance of rule‐intermediation (RI), the role that organizations adopt to bridge actors with regulatory or “rulemaking” roles and those with target or “rule‐taking” roles. Intermediation not only enables the diffusion and translation of regulatory norms, but also allows for the representation of different actors in policymaking arenas. While prior studies have explored the roles that such RIs adopt to facilitate their intermediation functions, we have yet to consider how field‐level structuring processes influence (and are influenced by) the various and changing roles adopted by RI. In this study we focus on the mutually constitutive relations between field‐level change processes and the evolving roles of RIs by studying the rise of the International Council for Local Environmental Initiatives (ICLEI)/Local Governments for Sustainability, an RI serving as a bridge for sustainable urban development policies between the United Nations and local authorities. Using ICLEI as an illustrative case, we theorize four different processes of regulatory field structuration: problematization, role specialization, marketization, and orchestrated decentralization. We discuss their implications for RI roles in the field and further theorize the changing dynamics of trickle‐up intermediation processes as an RI gains power and influence.     

The New Urban Governance: Processes for Engaging Citizens and Stakeholders

The new urban governance requires not only tools (like tax incentives and contracts for privatizing government functions), but also new processes to carry the tools into effect, including deliberation and dialogue for making policy and dispute resolution (like negotiation, mediation, and voluntary monitoring) for implementing and enforcing it. The processes vary with their application in the policy process, from upstream identification of policy preferences to downstream enforcement. These processes share certain characteristics. All empower citizens and stakeholders to exercise their voice and become more engaged in their communities. All can substitute for or supplement traditional governance processes such as rulemaking or adjudication. They make it possible for leaders to collaborate with community stakeholders, and together to consider a broader and perhaps different set of ideas and proposals. These processes may permit participants to develop a consensus on priorities based on community values and interests rather than simply legal rights.     

Policymaking with Multiple Agencies

Authority over related policy issues is often dispersed among multiple government agencies. In this article, I study when Congress should delegate to multiple agencies, and how shared regulatory space complicates agency decision making. To do so, I develop a formal model of decentralized policymaking with two agencies that incorporates information acquisition and information sharing, delineating situations where legislators should and should not prefer multiple agencies. Greater divergence between the agencies' ideal points distorts information sharing and policy choices, but it may increase the amount of information acquisition. Congress achieves better policy outcomes by delegating authority to both agencies if the agencies have strong policy disagreements. If the agencies have similar policy preferences, however, then Congress may want to consolidate authority within one agency because this approach mitigates free-riding and takes advantage of returns to scale.     

The Perils of Public Health Regulation

Policies that are designed to promote public health should not use coercion to discourage unhealthy decision making. Though public health officials may be experts about medical regularities in a population, they are not experts about which dietary or lifestyle choices are best for particular indiviuals. Experts in regulatory agencies also face several political incentives that undermine their ability effectively to promote health at the population level. Furthermore, without consent, coercive public health policies are extremely difficult to justify to citizens. For these reasons, states should not enforce coercive public health policies, even if the state subsidizes citizens' healthcare. Many of the same reasons to reject coercive public health regulations are also reasons to reject other coercive paternalistic policies.     

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.     

What's wrong with the back of the envelope? A call for simple (and timely) benefit–cost analysis

Observers across the ideological spectrum have criticized benefit–cost analysis for as long as it has been part of the rulemaking process. Still, proponents and detractors agree that analysis has morphed into a mechanism often used by agencies to justify regulatory decisions already made. We argue that a simpler analysis of more alternatives conducted earlier in the regulatory process can resuscitate it as a tool to inform policy. Recognizing that requiring a procedure does not ensure that regulators will follow it, we offer possible remedies, including strengthening or relaxing subsequent review of proposed rules, which raise the cost of circumventing the reform or lower the cost of following it.     

The Differential Empowering Effects of Europeanization on the Autonomy of National Agencies

This article examines the influence of Europeanization on the relationship between ministries and agencies at the national level. The core argument is that the differentiated nature of the international environment (with policy development often transferred to the international level and policy implementation left at the national level) transforms national agencies into policy‐developing actors that shape policies without being directly influenced by their national political principals. The increasingly common involvement of national agencies in European policymaking processes thereby increases these agencies' policy‐development autonomy but does not change their role in policy implementation. We examine this argument by testing an innovative hypothesis—the differentiation hypothesis—on a combined data set of German and Dutch national agencies. Our empirical findings support the hypothesis in both countries, suggesting that similar effects can be expected in other contexts in which semiautonomous agencies are involved in transnational policymaking.     

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.     

The rise of public sector innovation labs: experiments in design thinking for policy

Governments are increasingly turning to public sector innovation (PSI) labs to take new approaches to policy and service design. This turn towards PSI labs, which has accelerated in more recent years, has been linked to a number of trends. These include growing interest in evidence-based policymaking and the application of ‘design thinking’ to policymaking, although these trends sit uncomfortably together. According to their proponents, PSI labs are helping to create a new era of experimental government and rapid experimentation in policy design. But what do these PSI labs do? How do they differ from other public sector change agents and policy actors? What approaches do they bring to addressing contemporary policymaking? And how do they relate to other developments in policy design such as the growing interest in evidence-based policy and design experiments? The rise of PSI labs has thus far received little attention from policy scientists. Focusing on the problems associated with conceptualising PSI labs and clearly situating them in the policy process, this paper provides an analysis of some of the most prominent PSI labs. It examines whether labs can be classified into distinct types, their relationship to government and other policy actors and the principal methodological practices and commitments underpinning their approach to policymaking. Throughout, the paper considers how the rise of PSI labs may challenge positivist framings of policymaking as an empirically driven decision process.     

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.     

Politics Can Limit Policy Opportunism in Fiscal Institutions: Evidence from Official General Fund Revenue Forecasts in the American States

Governments make policy decisions in the same areas in quite different institutions. Some assign policymaking responsibility to institutions designed to be insulated from myopic partisan and electoral pressures and others do not. In this study, we claim that differences in political context and institutional design constrain the policy choices governments make. Testable propositions based on an analysis of varying electoral incentives and time horizons created by these different contexts are empirically tested using panel data on official general fund revenue forecasts in the American states, 1987 to 2008. The empirical evidence reveals that executive branch agencies and independent commissions produce more conservative forecasts than legislatures with one important exception. Executive branch revenue forecasts in states with gubernatorial term limits are indistinguishable from legislative branch forecasts. Further, we find that legislative branch forecasts are more conservative in the presence of divided partisan legislatures than unified party government. In turn, this implies that entrusting policymaking authority to either the executive branch or an independent commission may only be consequential when the political system itself fails to check legislative excesses or executive myopia.