Administrative Procedures and Bureaucratic Performance: Is Federal Rule-making ‘‘Ossified’’?

We provide the first empirical assessment of the ossification thesis, the widely accepted notion that procedural constraints on federal agencies have greatly hindered the ability of those agencies to formulate policy through notice and comment rule-making. Using data that cover all active federal rule-writing agencies from 1983 to 2006, our results largely disconfirm the ossification thesis. Agencies appear readily able to issue a sizeable number of rules and to do so relatively quickly. Indeed, our empirical results suggest that procedural constraints may actually speed up the promulgation of rules, though our model suggests that this positive effect may decline, or even reverse, as proposed rules age. We conclude that procedural constraints do not appear to unduly interfere with the ability of federal agencies to act, or in most cases, to act in a timely manner. Have procedural constraints on federal agency autonomy unduly hindered the ability of federal agencies to regulate in the public interest or to regulate in a timely manner? Scholars working in the fields of public administration, administrative law, and political science routinely assert that the federal regulatory process is broken (Seidenfeld 1999, 429). Thes