Promoting Participation? An Examination of Rulemaking Notification and Access Procedures

• Date: 01 May 2009
• DOI: http://doi.org/10.1111/j.1540-6210.2009.01997.x
• Author: Neal D. Woods
• Published date: 01 May 2009

Neal D. Woods

University of South Carolina

Promoting Participation? An Examination of Rulemaking

N otif‌i cation and Access Procedures

Promoting

Participation

Inside

Government

Neal D. Woods is an assistant professor

of political science at the University of

South Carolina. His research focuses on

rulemaking and regulation, federalism

and intergovernmental relations, and

e nvironmental policy.

E-mail: neal.woods@sc.edu

 is study documents state

implementation of mechanisms

designed to promote public

participation in agency

rulemaking. Many scholars have

questioned the ef‌f ectiveness of

such mechanisms, arguing that

they fail to encourage greater

participation or that increased

participation does not af‌f ect the

substance of administrative rules.

Using data from a unique survey

of state administrators, the author

employs multivariate analyses to

assess the relationship between

these measures and the perceived inf‌l uence of external

actors.  e results suggest that critics may understate the

importance of public notif‌i cation and access procedures.

 ese devices are associated with increases in the impact

that a wide variety of actors are perceived to have on the

content of agency rules.

In a wave of optimism over the benef‌i cial ef‌f ects

of openness in government, a great number of

procedural reforms were made in the 1970s and

1980s to provide the interested public greater access

to the process of policy implementation at all levels

of government.  ese reforms included expanded

public notice of agency rulemaking actions, man-

datory public hearings, freedom of information

requirements, and mechanisms designed to open the

rulemaking process up to increased public scrutiny

and challenge.

In the states, these procedural reforms have g enerally

been established through administrative procedure

acts (APAs).1  e earliest state APAs precede the

federal A dministrative Procedure Act of 1946, but a

large number of APAs were enacted during a f‌l urry of

activity in the 1970s and 1980s. Many existing APAs

were amended during this p eriod as well, in order to

include new provisions p roviding for increased public

access to agency rulemaking. Some of these p rovisions

sought to increase public

awareness of agency rulemaking

actions by mandating that agen-

cies publicize rulemaking time-

tables earlier and more broadly.

Others sought to encourage

participation by interested

parties by providing them with

institutionalized access to the

process itself.

 ese reforms have generated a

good deal of controversy. While

advocates point to greater open-

ness and participation in agency

decision making, critics argue that that these mecha-

nisms generate scant participation in the rulemaking

process, and that administrators have little incentive to

pay attention to the comments they receive.  is argu-

ment has shed more heat than light; direct empirical

assessment of the impact of these procedures has been

scarce.

In this study, I seek to add to our knowledge of public

participation procedures by pursuing two related

goals.  e f‌i rst goal is to describe the various types of

mechanisms that states currently employ to e ncourage

public participation in administrative rulemaking,

and the extent of the states’ adoption of each. Second,

I seek to provide an empirical assessment of the

relationship between reformed rulemaking procedures

and the inf‌l uence of external actors on the content of

agency rules.

Public Participation in Administrative

Rulemaking

Rulemaking is the exercise of legal authority that

has been delegated by the legislature to an agency.

A dministrative rules “f‌i ll in the blanks” of legislative

statutes and, like the statutes themselves, carry the

force of law.2 Since the passage of the A dministrative

Procedure Act in 1946, and accelerating in the

1970s and early 1980s, Congress and the courts have

Some [procedural reforms] . . .

sought to increase public

awareness of agency rulemaking

actions by mandating that

agencies publicize rulemaking

timetables earlier and more

broadly. Others sought to

encourage participation by

interested parties by providing

them with institutionalized

access to the process itself.

518 Public Administration Review • March | April 2009

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