This study tests a theory of "information capture," in which the excessive use of information and related information costs can serve as one means by which regulated parties gain control over regulatory decision-making. The information capture thesis predicts the nearly complete monopolization of the rulemaking process by regulated parties in a potentially large set of regulations that are complex and technical, but that nevertheless have an important impact on public health and welfare. This study utilizes both quantitative and qualitative methods to test rulemakings for correlations between interest group participation and influence as it relates to rule complexity. Specifically, the study will involve the collection of data on four distinct sets of rules promulgated by three separate agencies (totaling over 250 rules) over a period of more than three decades. It will examine the entire life cycle of the rulemakings in each of these sets of rules.
The number of rules promulgated by federal agencies dwarfs the number of laws passed by Congress. Yet despite its widely recognized significance, the rulemaking process remains an under-studied part of the federal legal and political system. The study offers an empirical basis for understanding some of the possible limits of agency accountability within current administrative process.
Because of its vast size and scope, very little is known about the day-to-day operation of the federal bureaucracy. This study attempts to look behind the curtain to learn at least a little bit more about the rules that the agencies are promulgating, with particular attention to the issue of who participates in these rulemaking processes and to understand more about the nature of their participation. We hypothesize that the rulemaking process works much better in cases where a broad range of interested parties engage in the agency’s process and less well when the agency is inundated with only one set of interests that dominate the regulatory deliberations. More specifically, we predict that when agencies promulgate rules that are not highly technical or that have immediate mass appeal to the general public, the agency will typically receive input from a diverse group of affected parties and that the agency is generally attentive to these different perspectives in developing a final rule. For rules that are highly complex and for which the public implications are difficult to understand without a great deal of inside knowledge or expertise, by contrast, we hypothesize that the agency will receive input from only the most interested groups (the affected industry). We further expect that this latter set of rules – where only one set of interests engages -- will lead to rules that largely reflect the interests of the dominant party. If industry is the sole participant in complex environmental rules, for example, we expect that the public’s interest in environmental and health protection may be compromised. To test these predictions and learn more about the rulemaking process, we examined three very different types of agency rules: 1) broadcast regulations by the Federal Communications Commission (FCC); 2) worker safety standards promulgated by the Occupational Safety and Health Administration (OSHA); and 3) rules requiring the additional testing of certain chemicals by the Environmental Protection Agency (EPA). We collected data from the agency’s own records on who participates throughout the rulemaking process, how the agency engages with the interest groups, the agencies’ responses to the major comments, and whether the agency revises the rule after it is published. The data on all three sets of rules has been collected and is still being analyzed, but the preliminary results reveal notable differences between three different sets of agency rules that are consistent with the hypotheses of the study. For example, in the highly technical EPA rules, manufacturers and their trade groups were almost the exclusive participants throughout the rule process (not just in the comment period), and these groups were often successful in urging the weakening of the rules during the notice and comment process. For FCC rules, by contrast, individual citizens were the largest group of participants, and a diverse set of participants with competing views participated in the FCC process. As a result, in its decisions FCC appears to endeavor to balance these varied interests. OSHA falls somewhere in between, but tended to be much closer to FCC in terms of engaging a broad range of participants and funneling their participation through formal notice and comment periods. The research from this project will ultimately be published as articles and perhaps a book, with the primary audience being academics within law and political science. We hope that in conducting this research we have not only made useful discoveries with regard to the rulemaking process, but refined some of the empirical methods to make the study of agencies easier for other researchers in the future. We also plan to interact with agencies in the wake of this study to help identify ways that their record-keeping practices can be improved to make it easier for both researchers and the general public to understand the work they are doing.
