Federal Rulemaking Research Articles

Understanding the factors that impact federal rulemaking: a survey of former EPA regulators.

While federal rulemaking is an essential part of American governance, it is not well understood by researchers and advocates. We surveyed 115 former regulators at the Environmental Protection Agency to understand their views on the kinds of information they valued most and their communication preferences (June-August 2023). Respondents highly valued information about the scope of a problem (96%), legal analysis (97%), technology assessments (96%), and impacts of a proposed rule (99%). Regulators had difficulty accessing several kinds of information: 16% of respondents viewed racial equity information as easy to access and 30% thought financial information was easy to access. Respondents valued communications that provided data (99% viewed as effective), made compelling arguments (97%) or technical recommendations (93%), and storytelling (88%). Respondents indicated that the content of comment letters was important: 94% viewed letters containing data as important and 90% valued technical recommendations. Only 22% thought that repetition of the same comments across letters was important. Our findings reveal opportunities for researchers and advocates to help fill information gaps and identify communication strategies that might resonate with federal regulators.

The Regulation of Foster Care: Using Federal Rulemaking to Update Foster Care Licensing Standards

The US foster care system is stretched far beyond its capacity due to a lack of funding, limited permanent foster child placement options, and outdated foster care guidelines. To address several of these issues, the Administration for Children and Families (ACF) enacted a rule in November 2023 to change the legal definition of “foster family home” in the Social Security Act to more closely align the foster care system with best practices. This paper explores how the ACF used federal rulemaking to modify foster family licensing standards, the implications for the foster care system, and additional recommendations that the ACF may consider to maximize the rule’s impact.

Rotting Under the Bridge


 
 
 In response to legislative gridlock, Presidents have increasingly relied on policy made by administrative action, leading to major swings occurring when the political party of the presidency changes. These policy disputes have spilled into the third branch with a concomitant increase in legal challenges seeking judicial review of such actions. At the same time, since the 1980s, both Republican and Democratic administrations have made cost-benefit analysis the currency of federal rulemaking in the executive branch.
 The combination of cost-benefit analysis requirements and increased litigation over rulemaking has increased the importance of economic and scientific justifications in both the original promulgation and any subsequent revision of administrative actions. False or misleading data in regulatory analysis, when unchecked, pollutes the regulatory process—and administrative decisions that rely on flawed data should be struck down as arbitrary and capricious.
 Despite their importance to the administrative process, the actual economic and scientific analyses that underlie cost-benefit studies are often not at the front and center of regulatory action or of legal challenges. To more transparently understand the legality of administrative actions and thus to push for better regulatory actions, these underlying data should be better presented in agency actions. Though attorneys may not believe themselves well versed in the minutiae of such studies, underlying economic and scientific data should be analyzed closely in any legal rulemaking challenges.
 
 
 
 In this Article, we use the economic analyses accompanying the Trump administration’s National Waters Protection Rule rulemaking under the Clean Water Act as a case study to demonstrate the importance of such data and administrative actions, and as a vehicle to discuss approaches to accommodate this procedural need moving forward.
 
 
 
 
 

Lawmaking in the Republic of Crimea: The Current State and Prospects

The paper examines the issue of the lawmaking development in the Republic of Crimea as a subsystem of lawmaking in the Russian Federation in modern conditions. The author analyzes historical stages of development of the Crimea legislation from the 1991 Referendum to the adoption of the new Constitution of the Republic of Crimea in 2014 and the factors contributing to the effectiveness of lawmaking technologies.Using the methods of synthesis and comparison, as well as the formal legal method, the author identifies two models of development of lawmaking in the constituent entities of the Russian Federation. The author draws attention to the rule-making policy in the regions and determines the role of the RF Constitutional Court decisions in improving regional legislation.From the standpoint of the theory of organization, the author considers lawmaking as a higher stage of development of lawmaking activity and a peculiar form of legal activity. Considerable attention is paid to the study of the concepts of interaction between lawmaking systems of the Republic of Crimea and the Russian Federation.Lawmaking in the constituent entities of the Russian Federation is an integral part of the unified law-forming process of the federal State. The Republic of Crimea, like other constituent entities of Russia, is endowed with lawmaking competence. At the same time, regional lawmaking should be a logical continuation of the federal one with due regard to regional peculiarities. And in no case it can confuse, complicate, contradict, duplicate federal rule-making.

Ethics governance development: The case of the Menlo Report.

The 2012 Menlo Report was an effort in which a group of computer scientists, US government funders, and lawyers produced ethics guidelines for research in information and communications technology (ICT). Here we study Menlo as a case of what we call ethics governance in the making, finding that this process examines past controversies and enrols existing networks to connect the everyday practice of ethics with ethics as a form of governance. To create the Menlo Report, authors and funders relied on bricolage work with existing, available resources, which significantly shaped both the report's contents and impacts. Report authors were motivated by both forward- and backward-looking goals: enabling new data-sharing as well as addressing past controversies and their implications for the field's body of research. Authors also grappled with uncertainty about which ethical frameworks were appropriate and made the decision to classify much network data as human subjects data. Finally, the Menlo Report authors attempted to enrol multiple existing networks in governance through appeals to local research communities as well as taking steps towards federal rulemaking. The Menlo Report serves as a case study in how to study ethics governance in the making: with attention to resources, adaptation, and bricolage, and with a focus on both the uncertainties the process tries to repair, as well as the new uncertainties the process uncovers, which will become the site of future ethics work.

On Launching Environmental Law into Orbit in the Age of Satellite Constellations

In September 2022, the Federal Communications Commission adopted a new rule changing the deorbiting timeframe for satellites ending their missions in low Earth orbit from a twenty-five-year recommendation to a five-year legal requirement. The adoption of this rule, which seeks to cultivate a sustainable orbital environment for satellites, followed the United States’ July 2022 National Orbital Debris Implementation Plan, which tasked federal agencies with reviewing the effectiveness of their orbital debris-related rules. In the wake of the Supreme Court’s June 2022 West Virginia v. EPA decision, however, federal rulemaking in the area of orbital debris may not survive judicial scrutiny in the absence of explicit congressional authorization to do so. The purpose of this Article is to provide arguments for why Earth’s orbital environment should be protected under the National Environmental Policy Act and to provide draft legislation that is responsive to both the Orbital Debris Plan and the Supreme Court’s recent EPA ruling, which will enable FCC rulemaking in the area of orbital debris.

Public Reason, Public Comments, and Public Charge: A Case Study in Moral & Practical Reasoning in Federal Rulemaking

The "public charge" rule is a long-standing immigration policy that seeks to determine the likelihood that a prospective immigrant will become dependent on the government for subsistence. When the Trump administration sought to expand the criteria that would count against an applicant for permanent residency to include public benefits historically excluded from the calculation, thousands of commenters wrote to oppose or support the proposed changes. This paper explores the moral and practical reasons commenters provided for their position on the public charge rule and considers the value of the public comment process for immigration, health, and social policy.

Stepping Out Of The Lab: Civic Engagement Across Scientific Societies and the Broader Scientific Community in Recent Years

BACKGROUND AND AIM: Researchers in science, technology, engineering, math, and medicine (STEMM) have historically been disengaged from policy debates in many instances. However, an uptick in engagement of the scientific community in federal policy has been observed in recent years. METHODS: In the last five years, for example, many scientific societies and public interest groups have developed new or expanded programs to help train researchers and facilitate engagement opportunities, including meetings with Congressional staff, public comment writing for the federal docket, and direct engagement with the media on policy issues. Engagement also increased in other metrics, including scientist sign-on letters, participation levels in federal rulemaking, experts donating their time and expertise to provide independent science advice to decisionmakers, and the level of interest in policy conversations at scientific society meetings. RESULTS:Importantly, what was the effect of such engagement? Has there been positive impact of more technical experts engaging in policy process? Will such high levels of engagement be sustained through current and future presidential administrations? This talk will explore the real-world outcomes observed following meaningful engagement of STEMM experts in federal policy, using a few recent case studies. Examples will include instances of broad scientific community opposition to problematic policy proposals at the US Environmental Protection Agency, scientific community contributions to scientific priority setting under the Biden administration, and significant engagement from key experts on the National Ambient Air Quality Standards for particulate matter. CONCLUSIONS:Finally, a forward-looking perspective will be offered, including the potential for sustained heightened engagement levels and upcoming federal policy engagement opportunities for scientific researchers. Discussion of how engagement of STEMM experts can be sustained at the individual and institutional levels will also be raised. KEYWORDS: policy, scientific societies, engagement, activism, science advice, science policy

The Administrative Presidency and Federal Service

Through the 20th and early 21st century, the United States has seen the growth of the administrative presidency. As political polarization has made it much more difficult for a presidential administration to push public policy initiatives through Congress, presidential administrations have become much more dependent on executive orders, policy statements, federal rulemaking, and nonenforcement policies to implement their agenda. Presidential administrations have also attempted to exert much greater control over the actions of federal employees with policymaking and policy implementation responsibilities. The article argues that the modern administrative presidency has become a serious threat to the nation’s democratic values and institutions. The article also argues that in the wrong hands, the administrative state may do great harm. Finally, the article argues that the discipline of public administration must end its love affair with the administrative presidency. The danger of misuse of the administrative state has just become too serious to permit presidential administrations to coerce career civil servants to put the ideological interests of a President over the public interest. To help control this serious problem, the article argues that the discipline of public administration should help to empower federal employees to serve as guardians of constitutional values by providing them the tools necessary to uncover and make known instances of abuse of power by presidential administrations intent upon ignoring the constitutional foundations of the administrative state.

Response of the Environmental Protection Agency to Public Submissions: Notice and Comment Process in Methane Emission Deregulation

The federal Administrative Procedure Act mandates published notice of proposed rulemaking, along with the provision that stakeholders and the public at large be given the opportunity to comment on significant proposed rules. In theory, federal rulemaking is improved by the solicitation and consideration of these comments. The airing of diverse opinions may be expected to promote healthy debate within the agency and between the agency and affected stakeholders, ranging from concerned citizens to multinational corporations. But how effective is the notice-and-comment process? This work seeks to answer that question qualitatively but systematically, by examining significant comments received by the Environmental Protection Agency in connection with the 2020 Policy Amendments to the New Source Performance Standards for the oil and natural gas sector. There is no doubt EPA invests substantial effort in responding to significant comments. Moreover, many of EPA’s judgments and decisions appear to have plausible legal foundations. However, for the issues we have investigated, arising in 2019-2020, the EPA generally seems unpersuaded by reasonable arguments and resistant to reasonable suggestions, even when these are advanced by diverse commenters. Sometimes, instead of dealing with these issues forthrightly, EPA ignores or evades them. A response that appears too often is that the issues can be taken up at an unspecified time in the future. Among other concerns, these observations raise the question of whether producing the 638-page Response to Public Comments constituted the best use of limited agency resources.

Use of cancer hazard assessments in Federal and state policy decision-making: Case studies of formaldehyde and trichloroethylene

Background: Every day over 1500 people die from cancer in the United States with estimated cancer-related economic costs reaching over $170 million. But approximately 42% of all cancers are preventable. Identification of cancer hazards, such as the National Toxicology Program’s Report on Carcinogens (RoC), is a first step in public health decision-making; however, the relationship between these activities is unclear. As part of a larger study to address knowledge gaps, we highlight two case studies of known human carcinogens – formaldehyde and trichloroethylene – which are listed in the RoC based on sufficient evidence from epidemiology studies.Methods: We searched U.S. Federal Register and Lexis Advance® for federal and state rulemaking actions citing RoC listings, among other scientific evidence. Relevant qualitative and qualitative data related to health and economic costs were extracted from regulations citing the formaldehyde and trichloroethylene listings. Monetized health benefit estimates were normalized and aggregated across relevant regulations.Results: We identified one state and 16 Federal regulations citing RoC’s formaldehyde assessment. Most federal rules aimed to reduce multiple air toxins, including formaldehyde, emitted from motor vehicles or other sources. One regulation targeted formaldehyde exposure specifically; the Environmental Protection Agency (EPA) estimated yearly benefits of $153 million from avoiding 26 to 65 cancer cases as a result of reducing exposure from composite wood products. Three federal rulemaking activities cited the trichloroethylene RoC assessment. According to two EPA proposed rules, prohibiting trichloroethylene use for certain commercial purposes, could save an estimated $311 million and avoid 22 to 120 cancer cases. The third rule provides health benefits to veterans exposed to trichloroethylene from military service and diagnosed with trichloroethylene-related diseases.Discussion: The case studies of regulatory actions citing two RoC-listed carcinogens illustrate methods that can be used to estimate economic benefits and health impacts, which are informed by hazard identification.

The evolution of standard S12.60 acoustical performance criteria, design requirements, and guidelines for schools

The committee on standards for the Acoustical Society of America was asked by the US Access board and others to develop standards for acceptable acoustics in classrooms. The effort resulted in a standard comprised of several parts. The first document was approved in 2002 and this later became part 1. The initial desire was to have a federal rulemaking and incorporate the standard into coverage for the Americans with Disabilities Act. Part 2 was approved in 2009 and provided guidance for relocatable learning spaces. The intent to have a federal rulemaking was thwarted by political factors so Part 1 was revised in 2010 with the intent to put the document into a format that would allow its incorporation or use in building codes. Part 3 is still being developed, but it is intended for Information Technology Equipment in Classrooms. Part 4 was approved in 2019 and gives guidance for education spaces such as gymnasia and other spaces used for physical education.

Quality Improvement in Dementia Care: Dementia Management Quality Measurement Set 2018 Implementation Update

The Dementia Management Quality Measurement Set was first developed and released in 2013 by the PCPI Foundation1 (formerly the American Medical Association [AMA]–convened Physician Consortium for Performance Improvement [PCPI]). Developed by an appointed multistakeholder technical expert panel (TEP), the 2013 Measurement Set was supported by staff from AMA, American Academy of Neurology Institute (AANI), American Psychiatric Association (APA), American Medical Directors Association, and American Geriatric Society. Several of the original measures were included into the Centers for Medicare and Medicaid Services (CMS) Physician Quality Reporting System after being finalized through the federal rulemaking process (table 1).

Quality improvement in dementia care: Dementia Management Quality Measurement Set 2018 Implementation Update.

The Dementia Management Quality Measurement Set was first developed and released in 2013 by the PCPI Foundation1 (formerly the American Medical Association [AMA]–convened Physician Consortium for Performance Improvement [PCPI]). Developed by an appointed multistakeholder technical expert panel (TEP), the 2013 Measurement Set was supported by staff from AMA, American Academy of Neurology Institute (AANI), American Psychiatric Association (APA), American Medical Directors Association, and American Geriatric Society. Several of the original measures were included into the Centers for Medicare and Medicaid Services (CMS) Physician Quality Reporting System after being finalized through the federal rulemaking process (table 1).

Making State Civil Procedure

State courts matter. Not only do state courts handle more than sixty times the number of civil cases as federal courts, but they also represent an important bulwark against the effects of federal procedural retrenchment. Yet state courts and state procedure are notably absent from the scholarly discourse. In order to evaluate state procedure—and in order to understand the states’ relationship to federal procedural retrenchment—this Article presents the first comprehensive study of who makes state civil procedure. This project begins with a systematic review of the formal processes by which states make their rules of procedure. Many of the relevant sources were not publicly accessible, so this project not only collects important data but in so doing also makes state procedure more accessible. Formal rulemaking authority is only part of the story. At the federal level, scholars have focused on the Advisory Committee on Civil Rules: an elite committee of mostly judges and practitioners, selected by the Chief Justice, that plays a primary role in proposing amendments to the Federal Rules of Civil Procedure. Critics have argued that the advisory commit- tee favors corporate interests, and they have attributed these effects to committee membership. Since the 1960s, there has been a dramatic decline in the share of practitioners on the committee and, simultaneously, an increased homogeneity among its members—i.e., Republican judges and corporate defense attorneys. State advisory committees have gone virtually unstudied. Indeed, in many states, advisory committee membership is not readily accessible. I collected membership information for every state advisory committee, and this Article compares these little-studied state committees to the well-known federal committee. In brief, state committees are notably more diverse. They have far greater representation of practitioners than the federal committee, and those practitioners are more evenly divided between plaintiff- and defense-side lawyers and between individual and corporate lawyers. Partisan effects are less severe among state judge members than at the federal level. State committees have much greater female representation than the federal advisory committee, and at least equal representation of racial and ethnic minorities. But at the same time, many state committees are less accessible to the public than the federal committee is. This Article then makes at least three contributions. First, although these data do not support causal inference, they permit normative engagement with the design of rulemaking institutions. This analysis connects with interdisciplinary re- search on decision-making that suggests that epistemic diversity can produce better and more durable outputs. Second, I argue that civil rulemaking can unite accessibility and diversity. States can be more accessible, and federal rulemaking can be more diverse. Finally, as state procedure becomes more important, this Article helps ensure that relevant information is not limited to those with privileged access and the resources to use it.

Modeling Construction Project-Induced Freight Reliability for South Carolina’s Interstate System

This paper focuses on the freight component of the federal rulemaking for performance management that assesses freight travel time reliability on the interstate system. As this is the first time agencies (departments of transportations and metropolitan planning organizations) have been tasked with establishing targets for freight reliability (and other measures), the paper proposes a modeling approach to systematically account for the traffic and roadway characteristics and predict possible changes in the truck travel time reliability (TTTR) ratio due to construction projects. Although different trendlines can be utilized to provide a range of TTTR indices for future years, the subjective nature of predicting a target value in a future year demands a more systematic approach to capturing the effect of construction projects on the variability of the TTTR ratio. This study uses South Carolina’s interstate system to develop the two generalized linear models (GLMs) and a Bayesian GLM. Length and type of traffic message channel, type of construction project, area type, average annual daily traffic, and number of lanes were found to be among the significant predictors associated with a change in the TTTR ratio as a result of construction activity. This paper discusses the association of these causal factors and their influence on freight reliability. Owing to the contemporary nature of TTTR, there is no existing research predicting this particular type of freight reliability; as such, this work is thought to be relevant and beneficial for transportation engineers, planners and forecasters.

Slow-Rolling, Fast-Tracking, and the Pace of Bureaucratic Decisions in Rulemaking

The slow pace of administrative action is arguably a defining characteristic of modern bureaucracy. The reasons proffered for delay are numerous, often centering on procedural hurdles or bureaucrats’ ineptitude. I offer a different perspective on delay in one important bureaucratic venue: the federal rulemaking process. I argue that agencies can speed up (fast-track) or slow down (slow-roll) the rulemaking process in order to undermine political oversight by Congress, the president, and the courts. That is, when the political climate is favorable, agencies rush to lock in a rule, but when it is less favorable, they wait on the chance that it will improve. I find empirical support for this proposition using an event history analysis of more than 11,000 agency rules from 150 bureaus. The results support the interpretation that agencies strategically delay, and that delay is not simply evidence of increased bureaucratic effort.

Public Land Agencies, Oira, and Rulemaking24

This research examines the role of the Office of Management and Budget's (OMB) Office of Information and Regulatory Affairs’ (OIRA) involvement in federal rulemaking. More specifically, this paper presents interview data from agency rule-writers across three public land agencies, the Bureau of Land Management (BLM), National Park Service (NPS), and the United States Fish and Wildlife Service (USFWS), along with OIRA staff to better understand OIRA's role in rulemaking processes. Through semi-structured interviews, this paper provides evidence to support that negative perceptions and relationships between OIRA and public land agencies only lengthens and strains rule development. The results suggest important lessons from agency personnel and OIRA staff about how future rulemakings can be strengthened by working on regulatory relationships through new forms of uniformity and consistency.

One Step Forward, Two Steps Back? The New U.S. Regulatory Budgeting Rules in Light of the International Experience

Executive Order (EO) 13771 on “Reducing Regulation and Controlling Regulatory Costs” introduces a new regulatory budgeting system in the U.S. federal rulemaking process. International experience suggests that the new rule, aimed both at reducing the number of regulations and the volume of regulatory costs, will focus on a subset of regulatory impacts, most certainly the direct costs imposed by regulation on businesses, or even a subset thereof. The paper discusses possible ways to make sense of the new rule, without undermining the soundness of benefit-cost analysis mandated by EO12866. The paper concludes that the new system, while potentially promoting more retrospective regulatory reviews, will risk fundamentally affecting the quality of regulation in the United States, generating frictions and inefficiencies throughout the administration, to the detriment of social welfare.

Environmental rulemaking across states: Process, procedural access, and regulatory influence

Rulemaking is central to policymaking in the United States. Additionally, regulatory authority is devolved to the states in many instances. However, our knowledge of state-level rulemaking is not as advanced as that related to federal rulemaking. To advance the scholarship on state rulemaking, this study compares environmental rulemaking across three environmental issues (renewable portfolio standards, concentrated animal feeding operation regulations, and hydraulic fracturing disclosure rules) in five states (California, Colorado, Michigan, North Carolina, and Pennsylvania) to understand procedural and stakeholder participation commonalities among the cases. Using data from public rulemaking documents, stakeholder comment during rulemaking, and in-depth interviews with agency staff and stakeholders, the findings suggest that there are common patterns of pre-process informal stakeholder consultation, public comment and outreach mechanisms, and corollary issues related to stakeholder access across these cases. These findings advance our knowledge of state-level rulemaking as it relates to public input and procedural equity for stakeholders.