Inside the Black Box

• DOI: 10.1177/0095399709339013
• Date: 01 September 2009
• Published date: 01 September 2009
• Author: William F. West

576

Administration & Society

Volume 41 Number 5

September 2009 576-599

© 2009 SAGE Publications

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Inside the Black Box

The Development of Proposed

Rules and the Limits of

Procedural Controls

William F. West

Texas A&M University, College Station

The need to develop specific proposals as a basis for formal participation

ensures the most important policy decisions in rulemaking are often made

before notice-and-comment requirements come to bear. Although informal

stakeholder participation in the development of proposed rules is common, it

tends to be unstructured and idiosyncratic and to lack the assurances of open-

ness that characterize the comment phase of the process. These observations

have important implications for our understanding of the effects and the

limitations of procedural constraints on bureaucratic policy making.

Keywords: rulemaking; public comment; proposed rules; administrative

policy

Kenneth Davis (1969) characterized rulemaking under the Administra-

tive Procedure Act (APA) as “one of the greatest inventions of modern

government” (p. 65). This evaluation was based in part on his belief that

public notice and comment was effective in promoting accountability and

responsiveness in bureaucratic policy making. Some recent studies have

offered at least qualified support for Davis’s enthusiasm.

One purpose of this article is to place these assessments in perspective.

Ironically, the mechanisms of institutional accountability that are designed to

ensure balanced and viable participation in rulemaking also confine that par-

ticipation to a late stage in policy development. Notwithstanding the direct

Author’s Note: I am grateful to all of the public servants who have taken the time to talk with

me and to Don Arbuckle, Neil Eisner, and Neil Kerwin for their comments on earlier drafts of

this article. I also appreciate the constructive comments offered by two A&S reviewers.

Finally, I would like to thank the Congressional Research Service for their support of a 2006

Bush School capstone project that identified some of the issues discussed in this article. Curtis

Copeland and Mort Rosenberg of CRS provided especially helpful advice. Please address

correspondence to William F. West, Bush School of Government and Public Service, Texas

A&M University, College Station, TX; e-mail: wwest@bushschool.tamu.edu.

West / Inside the Black Box 577

and anticipatory effects of notice and comment procedures, agencies have

often invested substantial resources and have tentatively resolved the most

critical issues by the time they publish a proposal in the Federal Register.

In light of this, a second purpose is to assess proposal development in

terms of the values that notice-and-comment requirements seek to promote.

Agencies routinely gather input from affected interests as well as from

other governmental actors as they are formulating important proposals. In

contrast to the relative uniformity of the comment phase, however, outside

participation in prenotice rulemaking tends to be informal and idiosyn-

cratic. As such, it is not usually constrained by institutional assurances of

inclusiveness and transparency.

The relationship between the proposal–development and comment phases

of rulemaking deserves much more attention than it has received. This arti-

cle outlines the general parameters of this relationship and suggests further

questions that can lead to a better understanding of how agencies make

policy. It also raises important evaluative issues concerning the tension that

may exist between administrative due process and political decision-making

tasks that are often central to rulemaking. Whether or not proposal develop-

ment is inclusive and transparent, its informality may facilitate partisan

mutual adjustment that becomes more difficult during the comment phase.

Introduction

Substantive rulemaking is the promulgation of administrative policies

that have the force and effect of law. Numbering in the thousands each year,

rules are issued across the full spectrum of government activity to regulate

commerce and to establish criteria for the allocation of social services,

benefits, and the like. Rules at least rival legislation in their significance as

a form of government output (Kerwin, 2003).

Rulemaking is often said to pose important issues of legitimacy

(Freedman, 1978) and political control (McCubbins, Noll, & Weingast,

1987) for our representative democracy. As a constraint on such discretion,

the Administrative Procedure Act (APA) of 1946 required that agencies

publish a notice of proposed rulemaking in the Federal Register and solicit

written comments on the merits of their proposal from any interested par-

ties. The framers of the APA reasoned that as the exercise of legislative

authority by nonelected officials, rulemaking should be informed by “the

viewpoints of those whom . . . regulations will affect” (APA, 1946, p. 21).