Academic journal article
By Jewell, Christopher; Bero, Lisa
Journal of Public Administration Research and Theory , Vol. 17, No. 4
Notice and comment procedures provide an important formal mechanism for the public to contribute to the policy-making process of administrative agencies. These provisions have been lauded as a crucial means for fostering rational decision making and institutional accountability in an unelected branch of government (Croley 2000). Others have argued that public submissions simply provide another forum in which powerful groups defend and promote their own narrow interests at the expense of the public (Wahl and Gunkel 1999).
But despite its potentially significant function, we have only a limited understanding of the ways in which different groups participate in notice and comment and what effect this participation may have on regulatory processes and outcomes (Kerwin 2003). Until recently there was a general consensus among scholars that public participation had, at best, a mild independent effect, with agencies sometimes making small changes between the proposal and the final regulation, especially where large numbers of comments were in agreement (Golden 1998; West 2004). Several recent studies of dozens of rules, though, have raised doubts about the accuracy of this view, finding that agencies frequently do alter their proposals in significant ways to better correspond with commenters' policy positions (Cuellar 2005; Yackee 2006). Business interests also appear to have greater impact on agency outcomes in some cases than nonbusiness groups (Yackee and Yackee 2006; see also, Wahl and Gunkel 1999). Such studies identify important patterns of interest group participation and agency behavior, but little research has been done to understand how interest groups assert their policy positions (including what information they provide) in order to understand how various constituents attempt to influence regulatory outcomes.
The passage of California's ergonomics standar--he only state regulation in the United States--provides an interesting case for examining public participation in the regulatory process. Cumulative trauma disorder (CTD) is a high profile occupational health issue that affects a large portion of the population and has tended to mobilize historic numbers of participants wherever regulatory action has been considered (Shapiro 2004). In the fall of 1993 a legislative mandate required California's state Occupational Safety and Health Administration (Cal-OSHA) to create a standard to minimize repetitive motion disorders in the workplace. An initial comprehensive regulation authored by an advisory committee of occupational health specialists from academic, labor, and business sectors provoked the largest public commentary response in Cal-OSHA history. This proposal was ultimately rejected by agency officials and, following litigation, a second much more restrictive (pro-business) proposal was promulgated, a version of which was ultimately adopted. In light of this dramatic shift in regulatory content, examining the public commentary provides a way of exploring what features of submissions vary among interest groups and may have been associated with this outcome.
In this article we examine the participation and claimsmaking strategies of individuals from distinct interest group affiliations, namely, the regulated community, labor--public health organizations, and private citizens. The "regulated community," consisting primarily of individual employers and business associations, make up the vast majority of participants and provide a disproportionate amount of evidence in the process, far more than labor leaders, injured workers, and their public health/university allies. Although business and labor represent opposing policy positions, the way they construct scientific, economic, and regulatory arguments and the kinds of information they use to support their claims are distinctive, reflecting what Schon and Rein (1994) refer to as different "policy frames." The regulated community deploys an "abstract-technical" policy frame, utilizing the technical language of scientific articles, financial data, and case law to argue against a regulation. …