Anatomy of a Regulatory Program: Comment on 'Strategic Regulators and the Choice of Rulemaking Procedures'

Abstract

Besides being a very interesting, cogent, and even a tidy study, "Strategic Regulators" sheds some bright light on agency behavior and on the important issue of whether agency rulemaking may be "ossifying."

The study design employed by Hamilton and Schroeder is attractively simple. They started with all of the Environmental Protection Agency's ("EPA's") hazardous waste regulations under the Resource Conservation and Recovery Act ("RCRA") appearing in the Code of Federal Regulations ("CFR"), counting each decimal point CFR number as a separate rule. This yielded 697 rules. They then examined all EPA/RCRA guidance documents issued since the inception of the program (1980-1991) and matched them to the appropriate CFR rule. Some CFR rules had associated guidance documents, and some did not. After characterizing the type and history of the individual CFR rules, the authors then developed hypotheses as to why certain CFR rules were more or less likely to be accompanied by supplemental guidance documents.

A premise underlying this research is that agencies seem to be avoiding notice-and-comment rulemaking in favor of greater reliance on more informal issuances. One problem with examining this premise, of course, is the compared-to-what issue. We know, for example, that federal agency rulemaking (at least as measured by the inadequate surrogate of Federal Register rulemaking documents and pages) peaked in 1979, dropped rather sharply in the early 1980s, and then edged back up through the late 1980s.

Looking at the RCRA slide provided by Hamilton and Schroeder, we see a similar, albeit bumpier, curve in the EPA's notice-and-comment rulemaking, while the EPA's more informal issuances rose sharply in the mid-1980s, only to drop off again in the late 1980s. Before making any government-wide generalizations, however, we still need better data, and better ways to measure data, on the rise and fall (and perhaps rise again) of agency rulemaking. Even when the data is available for a single program at a single agency, one wishes to know more about the institutional staffing, budgets, priorities, and, perhaps, the shadow of proposed rules waiting in the wings at the agency or at the Office of Management and Budget ("OMB"). Nevertheless, the beauty of the Hamilton/ Schroeder idea and database is that it allows us to document a relationship between agency rules and "non-rule" rules. It is quite illuminating to discover that certain types of rules-based either on their "target" or their "rule history" - are much more likely to be accompanied by at least one guidance document.

Keywords: administrative law, rulemaking process