Who Makes the Rules? Examining Regulatory Productivity by Federal Agencies

In Agencies by Jordan Carr PetersonLeave a Comment

Regulatory policy-making by federal administrative agencies is the object of both popular and scholarly attention. Critics charge that governance by the administrative state constitutes a “crisis of public authority” (Lowi 1967) because agencies, unlike legislatures, lack political accountability. At the same time, defenders of administrative policy-making contend that relying on federal agencies to fill out the contours of public policy takes advantage of bureaucratic expertise and avoids parochialism in Congress (Miller and Whitford 2016).

For all the debate over the merits and demerits of bureaucratic policy-making, though, obtaining systematic data concerning the scope of the administrative state represents a challenge. Since literally hundreds of agencies and bureaus composing the so-called fourth branch of government, any serious consideration of regulatory policy must acknowledge that “the bureaucracy” is not actually a singular noun.

In research under development with Pamela Clouser McCann and Nicholas G. Napolio of the University of Southern California, I seek to enhance our understanding of what many see as the black box of regulatory policy-making by federal agencies. Namely, by using data available from the Federal Register, we can provide an overview of which agencies have promulgated the most regulations, as well as which federal legislation forms the legal basis pursuant to which regulations have been promulgated from 1992 to 2012.

Our data comprise all regulations promulgated by 34 federal agencies from 1992-2012 pursuant to all legislation deemed “significant” by Yale political scientist David Mayhew. Our data reflect that while certain laws see very little regulatory activity (even though they explicitly delegate to one or more agencies), other legislation is a prodigious source of rulemaking. The five laws with the most regulations promulgated pursuant to them appear in the table below.

Law Year of EnactmentNumber of Regulations
Clean Air Act Amendments19891656
Toxic Substances Control Act1976985
Surface Mining Control and Reclamation Act1977540
Housing and Urban Development Act1968509
Occupational Safety and Health Act1970329

Perhaps not surprisingly, the three federal statutes that gave rise to the greatest volume of regulation during the time period in question all relate directly or indirectly to environmental policy. The other two laws govern policy areas that are also strongly associated with regulatory participation by the federal government: housing and urban affairs as well as safety in the workplace.

Our data show that there is variation across years in how many regulations are issued in general pursuant to significant laws. Figure 1 presents the number of rules across all federal departments and agencies promulgated from 1992 to 2012. These values range from a maximum of 800 in 1993, to a minimum of 535 in 2009.

Our data also reflect that agencies do not all promulgate regulations at the same velocity. As seen in Figure 2, some agencies regulate in much greater volume than others. For instance, from 1992 to 2012, the Environmental Protection Agency and the Department of Agriculture promulgated 3356 and 1890 rules, respectively, while the National Science Foundation, the Office of Management and Budget, and the Broadcasting Board of Governors each promulgated three or fewer rules each. This reflects that the political cross-pressures placed on agencies vary widely, largely by the agencies’ substantive jurisdiction.  On the whole, these data represent a first step toward better understanding the political and legal circumstances that enable participation in government by federal agencies.

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