a regulation can vary greatly in terms of its specificity, from (1) very broad grants of authority that state only the general intent of the legislation and leave agencies with a great deal of discretion as to how that intent should be implemented, to (2) very specific requirements delineating exactly what regulatory agencies should do and how they should take action. Note also in Figure H-1 the roles that Congress and the courts can play at the end of the rulemaking process, which may result in a rule being returned to an earlier point in the process or being vacated by the reviewing body. Congress may also play a role at other stages in the process through its oversight and appropriations responsibilities.
Implicit within the steps depicted in Figure H-1 is an elaborate set of procedures and requirements that Congress and various Presidents have developed during the past 60 to 65 years to guide the federal rulemaking process. Some of these rulemaking requirements apply to virtually all federal agencies, some apply only to certain types of agencies, and others are agency-specific. Collectively, these rulemaking provisions are voluminous and require a wide range of procedural, consultative, and analytical actions on the part of rulemaking agencies. Some observers contend that the requirements have resulted in the “ossification” of the rulemaking process, causing agencies to take years to develop final rules (McGarity, 1992; Pierce, Jr., 1995; Verkuil, 1995). For example, the National Advisory Committee on Occupational Safety and Health noted that it takes the Occupational Safety and Health Administration (OSHA) within the Department of Labor an average of 10 years to develop and promulgate a health or safety standard (National Advisory Committee on Occupational Safety and Health, 2000). On the other hand, while these congressional and presidential rulemaking requirements are numerous, it is not clear whether they or some other factors (e.g., lack of data, congressionally imposed delays, court challenges, etc.) are the primary cause of the long timeframes that are sometimes required to develop and publish final rules.
Driver, C. 1989. Regulatory precision. In Making regulatory policy, edited by K. Hawkins and J. Thomas. Pittsburgh, PA: University of Pittsburgh Press. P. 199.
Kerwin, C. M. 1999. Rulemaking: How government agencies write law and make policy. 2nd ed. Washington, DC: CQ Press.
McGarity, T. O. 1992. Some thoughts on “deossifying” the rulemaking process. Duke Law Journal 41:1385-1462.
National Advisory Committee on Occupational Safety and Health. 2000. Report and recommendations related to OSHA’s standards development process. Washington, DC: Occupational Safety and Health Administration.
Pierce Jr., R. J. 1995. Seven ways to deossify agency rulemaking. Administrative Law Review 47:59-93.
Verkuil, P. R. 1995. Rulemaking ossification—A modest proposal. Administrative Law Review 47:453-459.