Organizational Process, Rulemaking Pace, and the Shadow of Judicial Review

Published date01 September 2019
Date01 September 2019
Organizational Process, Rulemaking Pace, and the Shadow of Judicial Review 721
Russell W. Mills is director of the Center
for Regional Development and associate
professor in the Department of Political
Science at Bowling Green State University.
Previously, he worked as a policy analyst
for the Federal Aviation Administration in
Washington, DC. His research has appeared
Public Administration Review, Regulation
& Governance, Legislative Studies Quarterly,
Journal of Public Policy,
& Society
Abstract: 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
Evidence for Practice
• While most agencies that promulgate rules incorporate the perspectives of a diverse set of employees,
including subject matter experts, economists, and attorneys, they differ significantly with respect to when in
the rulemaking process these varied viewpoints are consulted.
• Rulemaking processes that emphasize team- based structures, in which relevant perspectives are included from
the beginning, typically produce rules that are promulgated faster than hierarchical structures, in which rules
are primarily written by the program office and subject to later approval by other groups in the agency.
• Rules that are finalized more quickly appear more likely to be overturned when challenged in court,
suggesting that a trade-off exists in using team-based organizational designs compared with more hierarchical
• Consistent with findings from studies in other organizational contexts, the noticeable differences in the
timing and character of rules emanating from regulatory agencies using more team-based approaches are
contingent on fostering a greater breadth of competencies among core group members.
• In contrast to the procedural requirements that agencies face, such as notice and comment and executive
review, agency and departmental leadership typically have great latitude in structuring rulemaking processes
in their organizations, suggesting a promising lever for managers to affect rulemaking outputs.
Christopher Carrigan
George Washington University
Russell W. Mills
Bowling Green State University
Christopher Carrigan is associate
professor of public policy and public
administration at the Trachtenberg
School and codirector of the Regulatory
Studies Center at George Washington
University. His research focuses on
regulatory policy making, including how
agency organizational design and internal
processes affect policy implementation. He
is author of
Structured to Fail? Regulatory
Performance under Competing Mandates
(Cambridge University Press, 2017) and
coeditor of
Does Regulation Kill Jobs?
(University of Pennsylvania Press, 2013).
Public Administration Review,
Vol. 79, Iss. 5, pp. 721–736. © 2019 by
The American Society for Public Administration.
DOI: 10.1111/puar.13068.
Organizational Process, Rulemaking Pace, and the
Shadow of Judicial Review
Finding ways to encourage agencies to increase
the pace at which they promulgate rules is on
a short list of the most persistent and complex
issues occupying scholars of regulation. Many
observers accept the notion that elongated time frames
are part of the rulemaking process, but less agreement
exists on the causes of and potential solutions to
alleged protracted timelines. One oft-cited reason
for regulatory delay is the cumbersome requirements
placed on agencies by external actors such as
Congress, the president, and the courts. For example,
scholars have argued that the procedural constraints
codified in the Administrative Procedure Act (APA)
of 1946 (5 U.S.C. §§ 551–559, 701–706) as well as
those mandated by executive orders have caused the
rulemaking process to become “ossified” (McGarity
1991a; Seidenfeld 1997; West 2005).
Just as forces originating outside the agency can affect
how quickly rules are promulgated as well as how they
are written, the ways in which processes are organized
inside agencies may also be important to consider.
The controversy that engulfed the Pipeline and
Hazardous Materials Safety Administration (PHSMA)
in 2015 and 2016 following a series of fatal explosions
involving U.S. pipelines offers one example. In the
wake of the accidents, PHSMA faced significant
criticism for its perceived inability to finalize rules
to toughen pipeline safety standards in response to
statutory deadlines imposed by Congress (Restuccia
Research Article
722 Public Administration Review Sept embe r | Oc tobe r 201 9
and Schor 2015). To explain the failure, media accounts fixated
on efforts by oil and gas companies to slow down the rulemaking
process at the agency.
Still, underlying the media’s focus on PHSMA’s relationships
with its regulated entities, a report by the U.S. Department
of Transportation’s Office of Inspector General (2016, 3)
simultaneously highlighted the value of considering dynamics
inside the agency to help explain the breakdown. Focusing on
PHSMA’s rulemaking process, the inspector general noted that the
agency had “not established policies or processes on rulemaking
or implementing mandates and recommendations that provide
guidance to the program offices, the Chief Counsel, and the
Chief Safety Officer (CSO) on how to fulfill their responsibilities
for safety regulations … This lack of sufficient processes, project
management, and oversight … impeded the Agency’s ability to meet
The significance of internal structure has not been lost on scholars
who study organizations broadly. Economists and organizational
theorists have long debated the optimal structure of work processes,
comparing systems that emphasize traditional hierarchies with those
that adopt more team-based approaches (Powell 1990; Williamson
1967). Moreover, while the empirical scholarship studying the
organization of work processes has often focused on its role in
driving results in firms, alternative methods for designing workflows
using team-based approaches are increasingly being used in public
organizations (Breul and Kamensky 2008).
Like organizational theorists, scholars of bureaucratic politics have
recognized the key role that structure can play in shaping regulatory
activities as well. This research has highlighted, for example, that
internal organization affects an agency’s ability to cultivate a clear
mission, manage goal ambiguity, and coordinate tasks to improve
regulatory performance (Carrigan 2017; Eisner, Worsham, and
Ringquist 2006; Wilson 1989). Additionally, others have shown
how more collaborative structures and processes can lead to better
regulatory outcomes as well as how such cooperation can be
extended to include external stakeholders (Coglianese 1997; Fiorino
2006, 2009; Lubbers 2008; Rinfret 2011).
Despite these applications of organizational theory to the study
of regulation more generally, less is known about how alternative
organizational designs affect the specific rules promulgated by
regulatory agencies across policy contexts (McGarity 1991b;
West 2005). In fact, those who have employed large-sample
cross-sectional approaches to study rulemaking have traditionally
focused on how those outside the agency, such as interest groups
and political overseers, can affect the pace of rulemaking and the
characteristics of the resulting rules (e.g., Balla and Wright 2005;
Shapiro 2002; Yackee and Yackee 2010, 2012). Of course, agencies
do differ with respect to how they organize their processes for
promulgating rules (Kerwin and Furlong 2010). Although many
rely on variations of team-based approaches in which the rulemaking
office coordinates the participation of various interests, others use
hierarchical designs in which a single office primarily manages the
rulemaking process. Further, some agencies employ a combination
of the two approaches, in which the lead office solicits the expertise
of other parts of the agency as needed (McGarity 1991b).
In studying how regulators differentially organize their rulemaking
efforts, this article offers the first systematic quantitative
examination of how variations in internal rulemaking processes
across a suite of federal agencies affect the pace at which rules are
promulgated as well as the properties of the rules. The research sheds
light on how differences in rulemaking processes among agencies
affect not only how quickly rules are formed but also the likelihood
they will be invalidated by courts through judicial review. To do so,
the analysis employs a novel data set created by tracking the contacts
listed in notices of proposed rules and proposed interim final rules
for the set of economically significant rules that were submitted to
the Office of Information and Regulatory Affairs (OIRA) by a broad
set of agencies over the period from 2007 to 2010.
By identifying the offices in which those contacts worked as well
as their job titles and supplementing those data by appealing to
agency documents outlining internal rulemaking procedures, this
study seeks to uncover the processes these agencies use to prepare
rules. Specifically, the data collection assesses the extent to which
an agency’s process emphasizes breadth of expertise among those
employees most closely involved in a rulemaking. Collecting
information on the time elapsed from the date of the submission
of the proposed rule or proposed interim rule to OIRA to the
promulgation of the final rule, in addition to whether any portion
of the rule was set aside when it was subsequently challenged in
court, the article investigates the impact of organizational design on
the timeliness and character of agency rules.
The regression analyses suggest that increasing the diversity of
personnel types most closely involved reduces the time it takes to
promulgate rules. In addition to its statistical significance, the effect
is meaningful, such that adding another personnel grouping to the
rulemaking effort is associated with a decrease of more than 30
percent in the number of days it takes to finalize the rule. Yet, at the
same time, a statistically significant relationship also exists between
the time frame to promulgate the rule and the probability that at
least a portion of it is subsequently invalidated through judicial
review. In fact, a one standard deviation decrease in the time frame
to complete the rule is associated with more than a 7 percentage
point increase in the likelihood that some part of it is set aside by
a court. Moreover, the analysis employs a formal mediation test
(MacKinnon, Fairchild, and Fritz 2007; Zhao, Lynch, and Chen
2010) to show that the collective pathway from agency structure
to rulemaking pace to judicial review outcome is statistically
significant, thereby suggesting the importance of the linkages
between the three variables.
Collectively, these results reveal that explaining variation in
the timeliness and character of promulgated rules may require
considering not only elements outside of the regulator’s direct
influence but also factors originating from within. Regulatory
scholars have demonstrated that procedural requirements, oversight,
and interest group participation matter for the pace of rulemaking;
this analysis similarly suggests that rule timelines might be sped up
or slowed down based on how agencies choose to organize their
rulemaking processes.
The results also indicate the possible existence of trade-offs in
designing rulemaking procedures. Examining the impact of agency

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