Administrative Rulemaking

Introduction: Smoking Whitefish

A lot of people like smoked whitefish. Some 2.75 million pounds of it were produced annually in the United States during the 1960s and 1970s. Be- tween 1960 and 1963, a problem arose—eight cases of botulism, the only US cases involving whitefish since 1899. All eight involved a vacuum-pack- ing process, which the industry soon abandoned. From 1964 through 1970, no botulism whatsoever was reported in the 17.25 million pounds of US- produced whitefish. Nevertheless, in 1970 the Food and Drug Adminis- tration (FDA) issued time-temperature-salinity rules requiring the heating of fish brined to 3.5 percent salinity at 180 degrees Fahrenheit for at least thirty minutes, or, alternatively, at only 150 degrees for the same period when the fish had salinity of 5 percent.

The Nova Scotia Food Products Corporation, however, maintained that the time-temperature-salinity standards would kill more than just the very remote possibility that toxic Clostridium botulinum type E spores would form in its smoked whitefish; the new standards would kill its business. According to Nova Scotia and the industry interest group, the Association of Smoked Fish Processors, Inc., the FDA’s requirements “could not be met if a marketable whitefish was to be produced” because they would “com- pletely destroy the product.” The company sued to block FDA enforcement action against its smoked whitefish.

The legal issues were specific to whitefish but common to much rulemak- ing. With remarkable clarity, the reviewing court averred,

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Rosenbloom, David H.. <i>Administrative Law for Public Managers</i>, Routledge, 2013. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/csusb/detail.action?docID=1652860. Created from csusb on 2019-10-10 23:38:36.

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The key issues were (1) whether, in the light of the rather scant histo- ry of botulism in whitefish, that species should have been considered separately rather than included in a general regulation which failed to distinguish species from species; (2) whether the application of the pro- posed [time-temperature-salinity] requirements to smoked whitefish made the whitefish commercially unsaleable; and (3) whether the agency recognized that prospect, but nevertheless decided that the public health needs should prevail even if that meant commercial death for the white- fish industry. The procedural issues were whether, in light of these key questions, the agency procedure was inadequate because (i) it failed to disclose to interested parties the scientific data and methodology upon which it relied; and (ii) because it failed utterly to address itself to the pertinent question of commercial feasibility.

In the court’s view, the FDA failed on two counts. First, “when the basis for a proposed rule is a scientific decision, the scientific material which is believed to support the rule should be exposed to the view of interested parties for their comment. One cannot ask for comment on a scientific pa- per without allowing the participants to read the paper.” Here, the court was prescient—making such papers public is a major purpose of the Data Quality Act (2000) mentioned in Chapter 1. Second, the rule was not accom- panied by a “concise general statement” explaining the rationale behind it, as is required by the Administrative Procedure Act (APA). Nowhere did the FDA address the issue of commercial feasibility. As the court noted, “It is not in keeping with the rational process to leave vital questions, raised by comments which are of cogent materiality, completely unanswered. The agencies certainly have a good deal of discretion in expressing the basis of a rule, but the agencies do not have quite the prerogative of obscurantism reserved to legislatures.” The whitefish industry (though not the whitefish) won a reprieve (United States v. Nova Scotia Food Products Corp. 1977, 250, 252).

Rulemaking: Definitions and General Concerns

The scope of federal rulemaking is astounding. To a very large extent, public policy in the United States is established through administrative rulemaking. Federal rules govern the purity of the food we eat, the water we drink, and the air we breathe. They regulate the safety of our work- places, homes, vehicles, and many of the products we use and consume. They determine much about the health care available to us as well as the

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65Rulemaking: Definitions and General Concerns

practices used in banking, industry, business, agriculture, and many other areas of economic life. From 1993 through 2013, federal agencies routinely promulgated roughly 3,500 to 4,000 rules per year, totaling 81,883, which significantly exceeded the volume of congressional lawmaking (Kerwin 1999, 18, 21; Crews 2013, 2). In 2013, agency final rules took up 24,690 pages in the Federal Register. On average, a law or rule was passed every 2.5 hours throughout the year, but rules outnumbered statutes by a ratio of twenty-nine to one (Crews 2013, 2). In the same year, ignoring the value of benefits, the gross cost of rules for the typical American family was al- most $15,000, or 23 percent of their annual income (Crews 2013, 2; Clark 2013). The number of federal employees working in agencies with regu- latory authority tops 290,000 (Zajac 2012, A14). Of this mass of rules, 48 percent were issued by the Departments of the Treasury, Commerce, In- terior, Agriculture, and Transportation and the Environmental Protection Agency (EPA) (Crews 2013, 3). Many rules are highly specific to particular technologies and processes used in broadcasting, generating energy, farm- ing, extracting natural resources, fishing, manufacturing, refining, and so forth. Cumulatively, along with rules having more general effects on the overall economy and environment, they do much to determine the quality of American life.

Federal government rulemaking can be tracked through the Unified Agenda of Federal Regulatory and Deregulatory Actions, which “provides uni- form reporting of data on regulatory and deregulatory activities under de- velopment throughout the federal government” (Office of Information and Regulatory Affairs [OIRA], n.d.). The agenda covers about sixty agencies, commissions, and departments. It includes their regulatory agendas and information about their priorities and “about the most significant regula- tory activities planned” for the year ahead (OIRA, n.d.). The Unified Agenda is published in the Federal Register in the fall and is also available online (see OIRA, n.d.).

There is no single definition of administrative rules. The federal Admin- istrative Procedure Act defines them as “the whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organi- zation, procedure, or practice requirements of an agency” (sec. 551[4]). Its definition also includes the “approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances,” as well as the accounting and other practices relating to them. Several general characteristics of rules are buried in this federal prose:

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1. Rules are usually prospective. Their requirements will become effec- tive and enforced at some future date, giving those directly governed by them time to comply. US administrative and constitutional law es- pecially disfavors rulemaking as a means of assessing the legality of past behavior. Adjudication rather than rulemaking is typically used to determine the legal status of past or continuing activity. Adjudica- tion is often called “ordermaking” to distinguish it from rulemaking. Sometimes, however, when there is good cause, rules may go into effect immediately.

2. There are three general types of rules. Legislative rules (or substantive rules) are like statutes and have the force of law. The FDA’s time- temperature-salinity rule was a legislative rule. Such rules regulate conduct, impose performance standards on products and processes, and establish eligibility for licenses and benefits. For instance, the US Occupational Safety and Health Administration (OSHA) enacts a wide range of legislative rules to regulate hazards and toxic sub- stances in the workplace; the National Highway Traffic Safety Ad- ministration similarly issues rules governing motor vehicle safety; Federal Aviation Administration rules regulate the safety of air travel; Securities and Exchange Commission rules regulate financial report- ing by companies whose stock is sold publicly; the FDA issues rules regarding food purity; and Federal Trade Commission rules regulate advertising and other economic practices.

Procedural rules govern an agency’s internal organization and op- erations, such as how it will process requests from the public for information or benefits of various kinds, deal with its own employ- ees’ challenges to adverse actions or equal employment opportunity complaints, and prioritize its enforcement actions. Interpretative rules (also called interpretive rules) are essentially policy statements and guidelines establishing an agency’s understanding of the terms of its statutory mandate. They should not, in theory, establish new legal ob- ligations but rather should explain the basis for existing ones. Some- times, however, the distinction is blurry. For instance, the 1964 Civil Rights Act specifically allows employers to use hiring and promotion examinations that are “professionally developed”—a term subse- quently defined by the Equal Employment Opportunity Commission (EEOC) as requiring that the exams actually be job related, something that is often very difficult for employers to demonstrate (Griggs v. Duke Power Co. 1971, 433–434).

3. Rules can be of general or particular application. They can regulate a very wide range of industry and activity (clean air) or a single process

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67Rulemaking: Definitions and General Concerns

(use of a pesticide). As the application of a rule narrows to only a few firms or persons, constitutional due process may require the rulemak- ing agency to provide notice and a hearing of some sort to those di- rectly affected (Bi-metallic Investment Co. v. State Board of Equalization of Colorado 1915).

As suggested by the FDA’s experience with smoked whitefish, a key po- litical and legal question is how administrative rules should be made. How should a time-temperature-salinity standard be formulated and applied? What voice in the development of such a rule should a food-processing company have? What voice, if any, should consumers and/or public health professionals have? What scientific or other information should underlie the rule? How much of that information should be disclosed? To what level of rationality should an agency be held?

If whitefish doesn’t appeal to you, then try peanut butter. Any prod- uct labeled as “peanut butter” must contain peanuts. But how should an agency go about determining how much of the product can be derived from nonpeanut products? Should it take nine years and a 7,736-page tran- script to determine whether the appropriate level is 87.5 percent or 90 per- cent? Should the allowable nonpeanut products include up to thirty insect fragments per one hundred grams, or fewer, or more (Warren 1996, 253; Rosenbloom and Kravchuk 2002, 454)?

There is a wide range of options for regulating administrative rulemak- ing. Agencies can be left completely to their own devices and allowed to make rules however they see fit. Alternatively, their processes and decision criteria can be so heavily regulated that they have very limited discretion in formulating and enacting rules. In between, there are many possibilities. In administrative law, these are often viewed as existing on a continuum from informal (less regulated) to formal (more regulated) processes. Each end of the continuum and every step along the way will maximize some values at the expense of others. The following are of major concern, as are the potential trade-offs among them:

1. Flexibility: When agencies make rules like those for smoked whitefish and peanut butter, they are exercising delegated legislative authority. Flexibility enables administrators to bring their expertise and discre- tion to public policy issues, such as food purity. Decisions sometimes rest on different views of the public interest, contested science, or competing assumptions about behavior. Some degree of uncertainty is generally present. (When is peanut butter no longer peanut butter?) Flexibility allows agencies to use their best judgment in determining

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what kinds of information should be used, from where and from whom, and which criteria should be met in formulating rules. Flexi- bility would place the burden of persuasion on those opposed to an agency’s rule. For example, the FDA has more flexibility if the burden is on food companies to demonstrate that a regulation is commer- cially infeasible than if it has to show that a rule, as applied to each product, is feasible.

2. Policy criteria: In contrast to having unfettered flexibility, rulemak- ers can be required to consider specific policy criteria, such as costs and benefits, the interests of small entities, and the impact of rules on the environment, economic competitiveness, families, and specific groups such as farmers or minorities.

3. Faithfulness to legislative intent: Rules can be more or less in keeping with the legislative intent behind them. Gross deviations from statu- tory intent or criteria are problematic in terms of the rule of law and democracy. Unelected administrators, who often have civil service protection, should not take the place of legislators. However, legisla- tive intent and statutory standards may be vague, or it may be neces- sary to reinterpret them in light of new knowledge, conditions, and technologies. Judicial and legislative review of agency rules can be applied, in varying degrees, to hold rulemakers accountable to legis- lative intent (see Chapter 6).

4. Rationality: Rulemaking can be subject to a variety of standards of rationality. An agency can be required to explain the rationale for a rule, the information or science used, the likely costs and benefits and perhaps their distribution, and the level of probability that the rule will achieve its intended purpose. Rulemaking may include manda- tory consideration of various alternative means of achieving the de- sired objective, such as safe smoked whitefish. Legislatures can use the same criteria when passing laws, but typically majority support is a surrogate for legislative rationality. Requiring high levels of ratio- nality may undercut flexibility.

5. Participation: Rulemaking can be limited to one or a few agency per- sonnel or opened up to the universe of interested or affected parties. Broad participation may yield better information and greater accep- tance of the legitimacy of administrative rulemaking. Agencies can be required to include enforcement agents in their rulemaking. Partici- pation also has costs; for example, it can reduce flexibility by encum- bering and delaying rulemaking. Although it is easy to poke fun at the FDA for taking nine years to issue its peanut butter standard, not all of the snail’s pace was of its own making.

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69Rulemaking: Definitions and General Concerns

6. Efficiency: Rulemaking can be an efficient alternative to legislative processes, which are usually cumbersome and laden with opportu- nities to block action. Rulemaking can be more timely and precise. Agencies can be required to produce rules within a fixed time frame. However, as policy criteria and opportunities for participation mul- tiply, efficiency may suffer. Higher standards of rationality may also impede efficiency. Nova Scotia urged the FDA to adopt specific pro- cessing requirements for each species of fish, which would have been more rational but also would have required much more science and time. The fish could have consumed a huge amount of the agency’s resources.

7. Enforceability and the ability to conform: Administrative law can encour- age agencies to produce rules that are clear, coherent, and enforce- able. The ability of regulated parties to conform, and at what cost, is always relevant to rulemaking, though rulemakers may give the issue limited attention. Nova Scotia flatly refused to comply with the FDA’s regulations. Agencies can be required to assess the impact of proposed rules on the different categories of entities that will be af- fected by them, such as small businesses and local governments, arid versus wet regions, and those who process a particular species of fish.

A good general checklist of rulemaking criteria is contained in Executive Order 12,866 issued by President Bill Clinton in 1993. It provides that fed- eral agencies’ regulatory action should be guided by twelve principles: (1) identify the problems addressed; (2) assess the contributions, if any, of ex- isting regulations to those problems; (3) identify alternatives to regulations; (4) consider risks; (5) assess cost-effectiveness; (6) weigh costs and benefits; (7) base decisions on the best obtainable information; (8) assess alternatives among regulatory possibilities; (9) seek the views of state, local, and tribal governments; (10) avoid inconsistency; (11) impose the least burden on so- ciety; and (12) write regulations in simple, understandable language.

President Barack Obama’s Executive Order 13,563 (2011) augmented Clinton’s list. It states that the federal “regulatory system must protect public health, welfare, safety, and our environment while promoting eco- nomic growth, innovation, competitiveness, and job creation” (sec. 1[a]). It urges agencies to take “equity, human dignity, fairness, and distributive impacts” into consideration in their regulatory efforts (sec. 1[c]). The order emphasizes the importance of public participation and indicates that pro- posed rules should generally be open for public comment for “at least 60 days,” which is thirty days longer than the APA requires (sec. 2). The order also calls on agencies to “harmonize” their rules across the government

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and to engage in “retrospective analyses of existing rules” to determine how to “modify, streamline, expand, or repeal” “outmoded, ineffective, in- sufficient, or excessively burdensome” rules (sec. 6).

Both the Clinton and Obama orders operate against the backdrop of APA requirements for legislative rulemaking. These rest on an idealized model of the legislative process itself. Prior to enactment of the APA in 1946, there was no single, standardized federal rulemaking process. Many agencies had great flexibility. Within the framework of broad delegations of legis- lative authority, they established the specific policy criteria and trade-offs, chose the participants, and set the level of rationality. Agency procedures varied so widely that an attorney might have to be specially certified to practice before any particular one, such as the Interstate Commerce Com- mission. A committee of the American Bar Association summarized federal rulemaking in 1934: “Practically every agency to which legislative power has been delegated (or sub delegated [by the president]) has exercised it, and has published its enactments, sometimes in the form of official printed pamphlets, bound or looseleaf, sometimes in mimeograph form, some- times in privately owned publications, and sometimes in press releases. Sometimes they exist only in sort of an unwritten law. Rules and regula- tions, upon compliance with which important privileges and freedom from heavy penalties may depend, are amended and interpreted as formally or informally as they were originally adopted” (228). In one congressman’s view, the federal bureaucracy was “becoming greater as a lawmaking in- stitution than the Congress of the United States itself” (US Congress 1940, 4672). The bigger problem, as another said, was that the agencies “not only pay too little attention to the viewpoint of the public, but pay less attention to the clearly expressed intention of Congress” (US Congress 1939, 46).

Congress’s solution was to require the agencies, “when acting in a quasi-legislative capacity,” to “follow the legislative practice of Congress, which from the beginning has held open public hearings on proposed leg- islation of general public interest” (US Congress 1940, 4591). In this model, administrative rulemaking is a search for the broad public interest. It draws on the insights, information, knowledge, and perspectives of the commu- nity at large, especially those who have the greatest stake or concern in the substance of a rule. Just as congressional committees hold hearings on proposed legislation or policy issues, administrators should approach rulemaking with open minds, listen to the public, and be responsive to it. In short, administrative rulemaking is a legislative process; therefore, it should be informed by legislative values.

A major difficulty with the idealized model is precisely that—it is ide- alized. Politics in the United States tends to flow to the point of policy

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71Rulemaking Processes

decision (Lowi 1969). When administrative rules make important policy choices, political influence—rather than a neutral search for the public interest—will be exerted (Stewart 1975). Political parties and groups will seek to protect and promote their interests. They will attempt to ensure that rulemakers pay attention to particular values, such as vibrant feder- alism, preventing environmental degradation, and protecting small busi- nesses. Groups with enough political clout may convince Congress, the president, or an agency such as the Office of Management and Budget to require impact statements or impose other procedures that will slow or block the adoption of rules that contravene their interests or values. They may also try to achieve their favored substantive policy outcomes or gen- erate delay by influencing an agency’s choice among available administra- tive procedures for rulemaking. Additionally, they may litigate and, over time, essentially compel agencies to use expansive procedures in order to establish comprehensive and defensible rulemaking records that reviewing courts will find convincing. After Nova Scotia, presumably the FDA was less likely to withhold the scientific basis for its rules or fail to issue a more comprehensive “concise general statement” of their purpose. Eventually, organized groups seeking to promote their own interests will tend to make rulemaking more elaborate.

It is highly unlikely that in enacting the APA in 1946 Congress could have foreseen what federal rulemaking would look like more than six de- cades later. The APA is based on an idealized model. It established three rulemaking processes and, for better or worse, left ample flexibility to build upon them. To varying degrees, the same general approaches are available at the state level.

Rulemaking Processes

The APA’s rulemaking processes range from unregulated to highly formal- ized, trial-like procedures.

Limited or No Procedural Requirements

Rules relating to military and foreign affairs, agency management, per- sonnel, public property, loans, grants, benefits, and contracts are exempt from APA requirements. Rulemaking on these matters may nevertheless be regulated by other statutes and/or internal agency procedures. The only APA requirement for procedural and interpretive rules is publication in the Federal Register (sec. 552[a][1][C][D]). The constitutionality or legality of specific exempt, procedural, and interpretive rules can be challenged in

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federal court, but how they are made is up to the agencies. Of course, an agency may want to consult with outside interests or even hold hearings on such rules, but it is not required to do so.

Agencies can also make legislative rules in unrestricted fashion (other than required publication in the Federal Register) when they have “good cause,” meaning more elaborate procedure is “impracticable, unnecessary, or contrary to the public interest” (sec. 553[b][3][b]). This is a large loop- hole. The US General Accounting Office found that in 1997 the good-cause provision was used in about half of all potentially covered rulemakings. Most instances involved administrative or technical matters of limited applicability. However, eleven substantial rules were published with no prior public notice or participation. In some cases, the agencies use one of two variants for obtaining public input after a rule is made. In direct final rulemaking, a rule is published in the Federal Register and goes into effect at a specified future date, unless adverse comments are filed. Interim final rules are immediately effective but subject to postpublication comments and potential withdrawal or revision (US General Accounting Office 1998, 2–3, 6–8; the General Accounting Office’s name was changed to the Gov- ernment Accountability Office in 2004).

Informal Rulemaking

Informal rulemaking requirements are modest but subject to consider- able amplification. Also known as notice and comment rulemaking, informal rulemaking imposes five requirements on the agencies. First, they must either specifically notify affected persons or publish a notice of the pro- posed rulemaking (NPRM) in the Federal Register. The notice must con- tain “(1) a statement of the time, place, and nature of public rule making proceedings; (2) reference to the legal authority under which the rule is proposed; and (3) either the terms or substance of the proposed rule or a description of the subjects and issues involved” (sec. 553[b]). Second, “the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or argu- ments with or without opportunity for oral presentation” (sec. 553[c]). Third, “after consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose” (sec. 553[c]). Fourth, after publication of a final rule in the Federal Register at least thirty days must elapse before it can take effect, unless there is good cause, explained with the published rule, for it to apply sooner. Fifth, the agencies have to “give an interested person the right to petition for the issuance, amendment, or repeal of a rule” (sec.

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73Rulemaking Processes

553[e]). If the agency significantly revises a proposed rule after receiving initial comments, it may publish a new version in the Federal Register to obtain additional feedback. On their face, these requirements do not ap- pear particularly burdensome. However, the potential for litigation and unfavorable judicial review of rules has prompted the agencies to treat the APA’s requirements copiously.

Agency notices regarding the substance of proposed rules have some- times been found inadequate. Reviewing courts may want “to see what major issues of policy were ventilated by the informal proceedings and why the agency reacted to them as it did” (Automotive Parts & Accessories Association v. Boyd 1968, 338). A final rule may be invalidated if a significant issue addressed by it was not identified in the NPRM or if it is not a logi- cal outgrowth of the proposed rule. After receiving comments, an agency can write a substantially different rule. However, the original notice must always enable the parties potentially affected by a final rule to know that their interests are involved. An agency’s notice cannot be so cryptic that interested parties are unable to comment upon it meaningfully. This was the problem with the FDA’s failure to disclose the scientific basis for its proposed rule in Nova Scotia. Additionally, as Nova Scotia illustrates, an agency’s concise statement of purpose may be defective. Finally, although the APA does not require rulemakers to respond to individual comments, agencies routinely docket them with some kind of assessment in order to build a record that will convince a court that a final rule is reasonable. Rules can have huge effects on the economy, environment, and public. Courts often take a hard look at their logic and rationality (see Chapter 6 on judicial review of agency actions).

Assessments of informal rulemaking vary. Notice and comment was intended to be straightforward, not straitjacketing. In practice, however, agencies tend to use more elaborate procedures than those outlined in the APA itself. As noted above, this is partly because they need to build a satis- factory record for judicial review. But as discussed later in this chapter, it is also due to additional requirements imposed by statutes and executive or- ders. Rulemaking has become laborious enough for agencies to use a vari- ety of techniques to obtain input from interested publics before writing, or deciding to write, proposed rules. They may chose or be required by stat- utes other than the APA to issue an advance notice of proposed rulemaking (ANPRM) to help frame their notice of proposed rulemaking. In fact, as a means of exercising influence, response to an ANPRM or informal contacts with the agency both before and after publication of an NPRM may be equally or more effective than submitting written comments or attending hearings, if any are held (Kerwin 1999, 195).

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Formal Rulemaking

Also known as rulemaking on the record, formal rulemaking is very elabo- rate—so much so that it can be counterproductive in terms of timeliness and efficiency. This is why the 1981 Model State Administrative Procedure Act avoids it (Bonfield 1986, 186). Federal agencies are also apt to dispense with it whenever possible, which is often. The APA sets forth the structure for formal rulemaking but does not require agencies to engage in it. Formal rulemaking is mandated by separate statutes when Congress considers it appropriate, as in some sections of the FDA’s Federal Food, Drug, and Cos- metic Act.

Formal rulemaking is a quasi-judicial, trial-like process. Hearings, which are central to congressional lawmaking, are mandatory for formal rulemak- ing. A panel or specific officer, who can be an administrative law judge or similar hearing examiner, presides. The presiding officer or panel regulates the course of the hearing, administers oaths, decides on the information that may be offered as evidence, tries to arrange for agreement among the parties, and, failing that, issues a decision. The parties to the hearing sub- mit evidence and may engage in cross-examination (sec. 556). The APA places the burden of persuasion on the proponent of the rule, which may be the agency or an outside interest. Ex parte (one-sided) contacts between the decisionmaker and a participant in the hearing in the absence of any other are improper. The agency maintains a complete transcript, and its de- cision must be supported by substantial evidence on the record as a whole.

The presiding officer or panel can issue an initial or recommended deci- sion. Initial decisions become final unless they are appealed; recommended decisions are automatically subject to review by the agency head or gov- erning board or commission. The final rule, if any, is published in the Fed- eral Register and takes effect, as specified, after at least thirty days have elapsed to enable those affected to comply. In unusual cases, the agency, board, or commission may issue a tentative decision for comment by the parties and possible revision. These provisions may be modified by what- ever statute requires the agency to use formal rulemaking.

The weight of opinion among administrative law scholars, legislators, and judges is that “the formal rulemaking procedure normally ‘does not work,’” or at least works so badly that it ought to be avoided (Warren 1996, 253). The courts, including the US Supreme Court, seem to agree. They are unlikely to force agencies to use it unless “(1) a specific statute clearly requires formal rule-making; (2) an oral, evidentiary hearing is mandated by a statute; and (3) adjudicative facts specific to an individual involving ‘property’ or ‘liberty’ interests must be resolved through a [constitutional]

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75Hybrid and Negotiated Rulemaking Processes

due process, formal rule-making agency hearing” (Warren 1996, 254; United States v. Florida East Coast Railway Co. 1973).

Hybrid and Negotiated Rulemaking Processes

Two additional general rulemaking approaches have gained currency since enactment of the APA in 1946.

Hybrid Rulemaking

Hybrid rulemaking was developed by some federal agencies, promoted by Congress, and, until 1978, sometimes imposed on administrators by the courts. Hybrid rulemaking follows a Goldilocks-type principle. As a means of making public policy, formal rulemaking is informational and procedural overkill, whereas informal rulemaking is potentially inade- quate in providing agencies with the comprehensive data and perspectives they need to formulate sound rules. The APA allows the agencies to search for a middle ground that is just right. Most notably, they can hold public hearings in conjunction with notice and comment rulemaking and invite interested parties to participate or solicit their views in some other fashion. With wider information, the agency can build a more complete record and, presumably, a stronger rationale for its final rule.

Hybrid rulemaking is related to a shift toward greater public and public interest group participation in administrative policymaking (Stewart 1975). Prior to the 1960s or 1970s, individual agencies were often considered “cap- tives” of specific, narrow-based economic interest groups (Bernstein 1955). In a classic case, the Interstate Commerce Commission was once consid- ered a ward of the railroad industry. The same interest group capturing the agency would have considerable influence with the congressional (sub) committees that formulated legislation in the particular policy area and exercised oversight of the agencies involved. Relations among the group, committee, and agency tended to be harmonious—and nearly impervious to influence from outsiders. The terms “iron triangle” and “cozy triangle” (or “subsystems,” as some political scientists call them) were used to de- scribe these policymaking arrangements.

In the 1960s and 1970s, political demands for wider group representation and greater attention to the public’s interest in administrative policymaking reached a crescendo. The period witnessed the enactment of the Freedom of Information Act (1966) and the Government in the Sunshine Act (1976) (see Chapter 5 on transparency), as well as the Federal Advisory Committee Act (1972), which is discussed later in this chapter. As the agencies responded to

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both the new statutes and the political mood, the iron triangle image gave way to one portraying far more open, participatory issue networks or policy networks (Heclo 1978). These are made up of groups and individuals who share technical knowledge and interest in policy areas but not necessarily the same political perspectives. For instance, whereas energy policy may once have been dominated by economic interests, such as oil and electric power companies, issue networks bring environmental and conservation groups into the policymaking (rulemaking) process.

The growth of hybrid rulemaking was instrumental in the shift from iron triangles to issue networks. By expanding participation in rulemaking, “agency personnel give shape to the heretofore formless issue networks” and, importantly, may serve as “arbiters” of their perspectives (Golden 1998, 12). This frees the agencies from captivity, or at least inordinate influ- ence, by a single interest and brings rulemaking closer to the idealized leg- islative model. Airing competing perspectives in the rulemaking process should enhance rationality and enable agencies to compile better expla- nations of the basis for their final rules. It should also lend more political legitimacy to rulemaking.

The federal courts boosted hybrid rulemaking in the late 1960s and early 1970s. As litigation became a staple of the administrative process, judges were looking for better agency records upon which to review the legality of final rules. In particular, they might require the agencies to grant greater participation to environmental or other public interest groups. Judicially imposed hybrid rulemaking came to a dead end with the Supreme Court’s unanimous decision in Vermont Yankee Nuclear Power Corp. v. Natural Re- sources Defense Council, Inc. (1978). In no uncertain terms, the Court held that the judiciary should not graft additional procedural requirements onto informal rulemaking. The agencies need only meet the minimal APA requirements. Otherwise, rulemaking requirements would be unpredict- able, and from a practical perspective, the agencies would have to make the informal procedure much more like the laborious formal one. How- ever, nothing in Vermont Yankee prohibited the agencies from using hybrid rulemaking on their own or Congress and the president from augmenting APA informal rulemaking requirements by statutes and executive orders.

Negotiated Rulemaking

Negotiated rulemaking was developed in the 1980s, also as a means of bringing rulemaking closer to the idealized legislative model. It relies on face-to-face negotiation among interested parties, including agencies, to

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77Hybrid and Negotiated Rulemaking Processes

formulate rules. Also known as regulatory negotiation (Reg-Neg), it gained full legitimacy via the federal Negotiated Rulemaking Act of 1990, which amends the APA’s rulemaking procedures. Reg-Neg is considered appro- priate when only a limited number of identifiable interests will be affected by a rule. The general procedure is for agencies to establish rulemaking committees after notice and comment in the Federal Register. Committees will typically comprise up to twenty-five members drawn from the agency, regulated entities, trade associations, unions, citizen groups, and other rel- evant interests. The committee should adequately represent all the affected interests. Its meetings are open to the public. A facilitator or mediator can be used to steer the proceedings in search of a consensus. Unanimity is required for a rule to be successfully negotiated, though members who op- pose the majority can withdraw from the committee rather than block its efforts. If consensus is reached, the agency publishes the negotiated rule in the Federal Register for notice and comment (and possible revision). Al- though the agencies are treated as any other participant in the negotiations, they retain ultimate control of whether a final rule will be issued and, if so, what its text will be.

The premise behind Reg-Neg is that it can improve on “the poor quality of rules produced, the burdensome nature of the rulemaking process, the length of time it takes to promulgate rules, and the frequency of litigation that follows” (US Senate 1989, 2). Compared with informal rulemaking, Reg-Neg is thought to be less adversarial, more problem solving and cre- ative, supported by better information and perspective, and more educa- tional for the parties (Strauss et al. 1995, 405). The Negotiated Rulemaking Act was permanently reauthorized in the 1996 Administrative Dispute Resolution Act.

Critics of Reg-Neg contend that it fails to deliver on its promise and “has the tendency to obscure, if not pervert, the public interest to the benefit of private interests” (Funk 1987, 57; quoted in Strauss et al. 1995, 405). Timeli- ness and litigation rates do not seem to have been dramatically affected by Reg-Neg, though the data are not conclusive (Coglianese 1997; Kerwin and Furlong 1992). By one count, the EPA’s Farmworker Protection Standards rule took 2,528 days, or nearly seven years, to complete, whereas the US Coast Guard took only 179 days to negotiate a rule regarding drawbridges on the Chicago River (Coglianese 1997, 1279). Negotiated rules, both be- fore and after the 1990 act, include such matters as residential woodstoves, nondiscrimination in air travel, asbestos in public schools, handicapped parking, clean fuels, wood furniture coatings, direct student loans, disad- vantaged students, and Indian self-determination.

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Additional Features of the Idealized Legislative Model for Rulemaking

Several other elements of the legislative rulemaking model are noteworthy.

Representation: Advisory Committees

Federal agencies have long used quasi-governmental advisory committees to guide them in setting rulemaking agendas, writing proposed rules, and performing other policymaking activities. Many of these committees have a relatively narrow focus, dealing, for instance, with a single geographic region, crop, animal, food, disease, chemical, or technology. The advisory committee system is fluid—committees come and go—but the following titles indicate their nature: Pediatric Advisory Committee, Allergenic Prod- ucts Advisory Committee, Medical Devices Advisory Committee, Cascade Head Scenic Research Area Advisory Council, National Advisory Coun- cil on Safety in Agriculture, National Cotton Marketing Study Committee, Cattle Industry Advisory Committee, National Advisory Council on Child Nutrition, Advisory Committee on Hog Cholera Eradication, Expert Panel on Nitrates and Nitrosamines, National Peanut Advisory Committee, and Raisin Advisory Board (Leahy 1976). Both Congress and the president es- tablish such committees, which are a valued resource in bringing greater expertise, perspective, and legitimacy to administrative policymaking. They also promote the democratic-constitutional values of participation and representation in agency decisionmaking (Steck 1984). The system is quite active. There are about 1,000 advisory committees. In fiscal year 2006, they had 67,346 members, held over 7,000 meetings, and produced almost 1,000 reports (Center for Effective Government 2014).

Advisory committees have sometimes been considered a powerful “fifth branch” of the government, the agencies being the fourth (US Senate 1978, 48, 217, 293, 299–300). Despite their acknowledged value, there is always concern that they will be skewed in favor of some interests at the expense of others, generate conflicts of interest, or exercise untoward influence over the agencies.

The Federal Advisory Committee Act of 1972 seeks to reduce the poten- tial for abuse. It requires that the membership of advisory committees be “fairly balanced in terms of the points of view represented and the func- tions to be performed” (sec. 5). It also specifies that the committees “will not be inappropriately influenced by the appointing authority or by any special interest” (sec. 5). The act promotes transparency through a number of public notice, open meeting, and reporting requirements (see Chapter 5

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79Additional Features of the Idealized Legislative Model for Rulemaking

in this book). It does not apply to committees composed entirely of federal employees.

The Federal Advisory Committee Act contemplates joint congressional and executive management of the advisory committee system. Congressio- nal committees are charged with reviewing the activities of those advisory committees under their jurisdictions and determining whether they should be merged with others, abolished altogether, or have their responsibilities revised. The Office of Management and Budget (OMB) also has a role in reviewing the status of advisory committees and issuing guidelines to im- prove their effectiveness. Cost is also a concern. In fiscal 2006 the commit- tees “cost the federal government more than $383 million in personnel, travel and support expenses” (Center for Effective Government 2014).

Protecting Specific Interests and Values

The use of advisory committees is premised on the belief that many inter- ests are well defined and coherent enough to be represented through direct participation in agency policymaking, including establishing rulemaking agendas. But what about interests and values that are so diffuse in the economy and society that they are not readily amenable to such direct rep- resentation? The federal government’s answer has been to protect them through impact assessments or analyses in notice and comment rulemak- ing. The Regulatory Flexibility Act of 1980 is a good example.

That statute requires agencies to analyze the effects of their rulemaking on small entities, which include small governmental jurisdictions, not-for- profits, and, most notably, businesses. Such entities often face a problem in that they are exceptionally burdened by the compliance costs associ- ated with across-the-board regulations for clean air and water, worker safety, and other matters. Overall, small business has very strong support in Congress. But specific small enterprises, such as mom-and-pop outfits, are likely to be less effective than large firms in using their own resources and/or relying on trade associations to protect their interests through daily monitoring of the Federal Register for ANPRMs and NPRMs and subse- quent submission of comments to the agencies.

The Regulatory Flexibility Act seeks to reduce small entities’ vulnera- bility to unduly burdensome, prohibitively expensive, and impractical regulations by requiring the agencies to provide regulatory flexibility (Reg- Flex) analyses, when relevant, in notice and comment rulemaking, along with their proposed and final rules. Reg-Flex analyses focus on the impact the rules will have on small entities and potential alternatives, if any, that would be less burdensome. Enforcement is through the Small Business

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80 3. Administrative Rulemaking

Administration, with limited opportunity for judicial review (Sargentich 1997, 124–126).

The Small Business Regulatory Enforcement Fairness Act of 1996 amended the 1980 act and strengthened the Reg-Flex process in a number of ways. It broadens the scope of judicial review for aggrieved small enti- ties. It also contains provisions requiring EPA and OSHA actively to seek input from representatives of small entities. The act continues to apply primarily to informal legislative rulemaking but also covers some Internal Revenue Service interpretive rules.

The precedent set by the Regulatory Flexibility Act gained a foothold in executive orders as well. President Ronald Reagan issued two such orders in 1987: No. 12,606 required agencies to engage in assessments of the im- pact of their proposed rules on “family values,” and No. 12,612 required “federalism impact assessments.” Clinton followed suit in 1994 with a similar order for environmental justice (No. 12,898). President George W. Bush’s Executive Order 13,422 mandated that when agency rulemaking is intended to correct a “market failure (such as externalities, market power, lack of information),” that failure must be identified in writing (sec. 1[a] [1]). President Obama’s Executive Order 13,514 requires agencies to iden- tify and analyze the “impacts from energy usage and alternative energy sources in all Environmental Impact Statements and Environmental As- sessments” pursuant to the National Environmental Policy Act of 1969 (sec. 2[f][iv]). In 1998, Congress strengthened the family values emphasis through the Assessment of Federal Regulations and Policies on Families Act, noted in Chapter 1, which requires the agencies to engage in “family policymaking assessments.” The executive orders on rulemaking are not binding on the independent regulatory commissions, such as the Federal Communications Commission and the Federal Trade Commission, which nevertheless may comply voluntarily. Although not without controversy as a matter of constitutional law, “the President . . . lacks distinct constitu- tional power to manage these organizations [i.e., independent regulatory commissions]” (Moreno 1994, 512). However, the orders do apply to EPA, OSHA, and similar executive branch units.

The Paperwork Reduction Acts of 1980 and 1995 also bear mention. They seek to control and reduce the enormous paperwork burden that fed- eral rules and requirements thrust on society. In 1980, the OMB estimated the overall burden at 1.5 billion hours (Skrzycki 1998, G2). By 1994, it had apparently reached 6.5 billion hours and may have cost as much as 9 per- cent of gross domestic product (Strauss et al. 1995, 872). The Paperwork Reduction Acts require agencies to publish in the Federal Register for public

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81Additional Features of the Idealized Legislative Model for Rulemaking

comment notices of their intent to collect information. They must also es- timate the burden their forms and related instruments impose. After com- pleting these steps, if the agencies decide to proceed, they must submit their proposals for collecting information to OMB’s Office of Information and Regulatory Affairs. Their submissions must include considerations of whether the information sought is duplicative or burdensome, creates special hardships for small entities, and is clearly identified or defined. The Office of Information and Regulatory Affairs (OIRA) works to pre- vent the collection of unnecessary information by monitoring and coor- dinating the agencies’ use of forms and other devices. It has sixty days to clear requests, which are approved for one year by default if it fails to meet this deadline. OIRA’s disapproval is binding with two exceptions: it is subject to judicial review if challenged as arbitrary and capricious, and independent regulatory commissions can override OIRA’s rejection by a majority vote of their commission or board members (Lubbers 1997, 116). A public-protection provision prohibits penalizing anyone for failing to respond to a federal information-collection instrument that was not prop- erly subjected to the required clearance process.

The paperwork reduction process seems straightforward enough, if not wholly adequate, in limiting the agencies’ appetite for information. De- spite the acts, the paperwork burden rose to 8.2 billion hours by 2002, in part due to population growth (Ziegler 2003, 6). Like many administrative law procedures, paperwork reduction can be used (or abused) politically to achieve public policy objectives. In 2001, a Republican congressional aide, working in concert with the head of OIRA, convened key business lobbyists in an effort to “use obscure paperwork guidelines as a back-door mechanism to gut long-established regulations” for air and water quality, lead paint, truck safety, reporting the release of toxic substances, and fam- ily and medical leaves. In short, “paperwork technicalities [are] an excuse to review otherwise untouchable rules” (Grunwald 2001).

This experience with paperwork reduction makes the idealized leg- islative model look less ideal. As suggested earlier, there are apt to be important value trade-offs in rulemaking processes. The Federal Advi- sory Committee Act’s reporting and transparency provisions encumber the use of such committees, albeit in an effort to promote democratic- constitutional values. Efforts to protect particular interests and values through impact assessments and paperwork review consume time and ef- fort. Some scholars wonder whether, in the aggregate, the addition of so many administrative law requirements to the APA’s basic process for in- formal rulemaking has such an inhibiting effect that a “‘regulatory impact

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82 3. Administrative Rulemaking

analysis’ impact analysis would be useful in deciding whether to under- take any further such requirements” (Strauss et al. 1995, 217)! Yet rulemak- ing has been further complicated by presidents.

Executive Efforts to Influence Federal Agency Rulemaking

Legislative rulemaking by administrators occupies a somewhat uncom- fortable place in the constitutional structure. When Congress exercises its legislative powers by enacting laws, the president has a veto. This gives the chief executive considerable bargaining power with Congress, which needs a two-thirds majority in both chambers to override vetoes. When Congress delegates its legislative authority to the agencies, the president has no formal veto power over their rules. The 1981 Model State Admin- istrative Procedure Act provides that a governor may “rescind or suspend all or a severable portion of a rule of an agency,” and some states autho- rize their attorney general to review rules (sec. 3-202; Bonfield 1993, 180). However, the federal APA has no equivalent provisions. Presidents need other means of promoting their policy agendas and coordinating executive branch activity. To a large extent, they rely on their political appointees for these purposes. President George W. Bush strengthened control over rulemaking by requiring that executive branch agencies’ regulatory policy offices be managed by political appointees with responsibility for super- vising rules and guidance statements (Executive Order 13,422 2007; Pear 2007). Beginning in earnest during President Richard Nixon’s administra- tion, presidents have also turned to administrative law devices.

Nixon established a lasting precedent by authorizing the Office of Man- agement and Budget to undertake quality-of-life reviews of proposed ad- ministrative regulations. The reviews focused on the regulatory objectives, costs and benefits, and plausible alternatives to proposed measures. Pres- ident Gerald Ford followed Nixon’s precedent by requiring the agencies to send inflation impact statements to OMB along with their proposed regu- lations. But it was President Jimmy Carter who ratcheted up presidential control of agency rulemaking toward contemporary standards.

Carter established the Regulatory Analysis Review Group to review agency rulemaking proposals likely to cost industries at least $100 million per year. Among its purposes were improving the analysis supporting pro- posed regulations and assuring consideration of the least costly alternatives (Kerwin 1999, 123). Carter’s Executive Order 12,044 (1978) established the Regulatory Council, composed of the heads of the agencies most active in regulation, to coordinate administrative rulemaking and assess the cumu- lative effect of regulations. The order also called on the agencies to publish

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83Executive Efforts to Influence Federal Agency Rulemaking

a regulatory agenda twice a year, write regulations in plain and simple language, increase outside participation in the development of regulations, prepare economic impact analyses for all significant regulations, and peri- odically review the efficacy of existing regulations. OMB was responsible for agency compliance, though actual review was typically conducted by the review group.

President Reagan followed Carter’s lead and put OMB at the center of much federal rulemaking. Executive Orders 12,291 (1981) and 12,498 (1985) centralized executive control of covered rulemaking in OIRA. Under the orders’ combined provisions, agencies had to submit draft and final regu- latory analyses, regulatory agendas, and major proposed and final rules to OIRA for review. Unless prohibited by a specific statute affecting a policy area, rulemaking had to incorporate cost-benefit analysis. Agency heads retained final authority to proceed with rulemaking but were required to explain any noncompliance with OIRA’s recommendations (Warren 1996, 279). Although compliance was the norm, this arrangement stuck to the letter of constitutional precedent, which allows Congress to vest legal au- thority specifically and directly in the agencies rather than in the president for subdelegation to them (Kendall v. United States 1838).

Observers agree that Reagan’s approach had a permanent impact on presidential direction and control of federal rulemaking (Warren 1996, 279; Kerwin 1999, 126). President George H. W. Bush (Bush I) (1989–1993) retained Reagan’s initiatives and also appointed a Council on Competi- tiveness to review selected major rules. President Clinton revoked the Rea- gan orders but adhered to their general direction regarding OMB review, though with more transparency in OIRA’s operations (Executive Order 12,866 1993).

President George W. Bush (Bush II) subscribed to “unitary executive branch theory,” which contends that the president has constitutional power to personally exercise legislative authority congressionally delegated to executive branch agencies. In other words, although Congress may dele- gate its lawmaking power to agencies with the expectation that they will use their scientific, economic, and public policy expertise to fashion rules for environmental protection and sustainability, occupational health and safety, safe pesticides, economic performance, and so forth, such rulemak- ing authority can be used by the president, personally or through political appointees, to write the rules (Rosenbloom 2010). Bush II’s efforts to con- trol rulemaking began in controversy on the very day of his first inaugura- tion (January 20, 2001), when his White House chief of staff, Andrew Card Jr., issued a memorandum asking the agencies to postpone the effective date of final rules for sixty days. The new administration wanted to review

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what many viewed as last-minute efforts to write final rules before the presidential transition. Bush II was building on a precedent set by Reagan in Executive Order 12,291, which imposed a sixty-day moratorium on new rules. Upon taking office, Bill Clinton also slowed “regulations that were underway, including those on the verge of becoming final, without touch- ing any completed rules about to take effect” (Goldstein 2001, A6).

The Bush II administration also sought to strengthen OMB review in five main ways. First, it favored more openness through use of the Internet to enable “the public to scrutinize how [OMB] use[s] science and econom- ics to stop bad rules and help agencies craft better ones” (Graham 2002). Second, OIRA intended to hire more scientists and engineers to join its stat- isticians, economists, and information technologists in analyzing agency rulemaking proposals. Third, OIRA planned to cajole the agencies into doing higher-quality regulatory analyses. Fourth, OMB took a proactive role in rulemaking by issuing “prompt letters” “to identify publicly areas where agencies might improve regulatory policies” (Graham 2002). For ex- ample, one such letter speeded up the FDA’s work on a food-labeling rule for trans fatty acids. Finally, OMB initiated a broad effort to require that the data on which rulemaking is based are “reproducible, or at least highly transparent, about research design, data sources and analytical methods” (Graham 2002).

These presidential efforts to supervise or control rulemaking are largely prospective. President Obama added a role for OIRA in oversee- ing agency plans to review “existing significant regulations” as part of his administration’s overall effort to improve rulemaking and regulation (Ex- ecutive Order 13,563 2011, sec. 6[b]). Generally, however, what is known as the “regulatory ratchet” dictates that rules are aggregative or accre- tive and “rarely recede” because deleting or modifying older rules is a low priority, cost-ineffective use of agency resources, potentially subject to unnecessary political controversy, and just plain “boring work” (Bar- dach and Kagan 1982, ch. 7). Under considerable pressure from President Clinton and Vice President Al Gore’s National Performance Review in the 1990s, the ratchet was partly reversed with the elimination of 16,000 pages of outdated regulations in the Federal Register and revision of 40 percent of the remaining rules (National Performance Review 1995). Con- sequently, Obama’s effort to institutionalize rule deletion and revision bears watching.

The logic behind presidential efforts to coordinate agency rulemaking and improve the quality of rules is clear. Nevertheless, presidents continue to face significant hurdles in gaining full mastery over agency rulemaking. As administrative law scholar Kenneth Warren (1996, 279–281) reminds us,

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85Conclusion: The Philosopher’s Stone Versus the Bubble Effect

with specific reference to Reagan, there are several limits to presidential authority over legislative rulemaking:

1. The independent regulatory commissions “promulgate thousands of major rules profoundly affecting public policy areas,” but their rulemaking is largely unaffected by executive orders (see also Moreno 1994). Requests that they voluntarily comply tend to be ignored.

2. Reagan’s executive orders did not apply to formal rulemaking, and, more generally, executive orders cannot override statutory or consti- tutional requirements affecting such rulemaking.

3. Bureaucratic inertia along with legal obstacles (and, one might add, agency support in Congress) make centralized control of the rulemak- ing process very difficult.

4. Reagan’s deregulatory agenda faced a substantial number of setbacks in court. Essentially, it takes informal rulemaking, or at least a co- gently reasoned analysis, to rescind final rules. A new administration cannot simply terminate rules promulgated by its predecessors (Mo- tor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Co. 1983; see Chapter 6).

With reference to Warren’s third point above, it should also be noted that executive orders, as in No. 13,514, may contain a provision making them legally and therefore judicially unenforceable by explicitly stating that they do not “create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person” (sec. 20[d]). Consequently, the penalties, if any, that agencies and their per- sonnel face for not adhering to the orders’ requirements are political. Yet it may be politically infeasible for presidents and their top aides to try to compel enforcement by taking action against career employees with civil service protection against dismissals and demotions and political execu- tives (appointees) who may enjoy congressional, interest group, or stake- holder support.

Despite such obstacles, the decades-old presidential effort to gain greater control over administrative rulemaking is likely to continue—often conten- tiously—through the current administration and beyond.

Conclusion: The Philosopher’s Stone Versus the Bubble Effect

During congressional debate on the APA in 1946, Senator Homer Fergu- son, a Michigan Republican, predicted that “there will be fewer complaints

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86 3. Administrative Rulemaking

because of the activities of governmental agencies if they will attempt to live within the rules and regulations laid down by Congress” (US Congress 1946, 2205). Maybe, but complaints about federal rulemaking still abound. Finding the “best” process is like searching for the philosopher’s stone. Rulemaking procedures are not neutral. They inevitably involve important value trade-offs. They also advantage some interests and participants while disadvantaging others. Members of Congress, presidents, administrators, and interest groups will tend to support procedures that favor their policy preferences and contest those that hinder them. Pressure will be brought to bear wherever key policy decisions can be made, blocked, or reversed. Interests that are able to influence rulemaking agendas and criteria, such as through the use of cost-benefit or Reg-Flex analysis, will do so; others, lacking the same avenues of influence, may turn to the courts to achieve their objectives. As a former OIRA official candidly summed up misuse of the Paperwork Reduction Acts for political gain, “The paperwork is a way in, you know?”—a way in to gut rules opposed by favored lobbyists (Grunwald 2001). Both before and after 1946, changing federal rulemaking has been like trying to squeeze an air bubble in a clear plastic tube. Putting pressure on it in one place moves the point at which it can be squeezed to another.

Additional Reading

Kerwin, Cornelius, and Scott Furlong. Rulemaking: How Government Agencies Write Law and Make Policy. 4th ed. Washington, DC: CQ Press, 2010.

Lubbers, Jeffrey. A Guide to Federal Agency Rulemaking. 4th ed. Chicago: ABA Press, 2006.

Discussion Questions

1. Almost all observers agree that federal legislative rulemaking has be- come highly complex and even convoluted. If you could change one or two aspects of the current processes to simplify rulemaking, what would you do? Why?

2. Presidents have used executive orders to add protection of specific interests and values, such as environmental justice, to legislative rulemak- ing. Do you think presidents should have the authority to do so in view of the fact that legislative rulemaking is based on congressional delegations of legislative authority, and if Congress wants to protect these values, it can do so in the delegations or by separate statutes? Why?

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87Discussion Questions

3. The Paperwork Reduction Acts notwithstanding, the amount of pa- perwork that federal agencies thrust on the American public keeps grow- ing. Federal income tax forms are one of the most time-consuming and intrusive paperwork requirements that most Americans fill out. Can you recommend ways of simplifying the form you use? If so, what are they? Do they involve rewriting tax law?

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