Inside the Black Box

Date01 September 2009
Published date01 September 2009
Administration & Society
Volume 41 Number 5
September 2009 576-599
© 2009 SAGE Publications
hosted at
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
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:
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.
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).

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