Regulatory Breakdown: The Crisis of Confidence in U.S. Regulation

By Cary Coglianese | Go to book overview

Chapter 8
Delay in Notice and
Comment Rulemaking:
Evidence of Systemic Regulatory Breakdown?

Jason Webb Yackee and Susan Webb Yackee

Is the U.S. regulatory system broken? The events of recent years would seem to provide depressing evidence that it is. Recent accounts detail a financial system out of control, a massive environmental disaster in the Gulf of Mexico, and a Salmonella outbreak in the nation’s food supply. These prominent cases suggest cause for concern, but they are also a call for new scholarly investigation and research. Do these accounts represent a “new normal” for the U.S. regulatory system? Or are they better understood as prominent outliers within an otherwise more competent regulatory process? Stated differently, every administrative law or regulatory policymaking scholar seems to know that it took the U.S. Food and Drug Administration (FDA) more than ten years to conclude regulatory proceedings that sought to determine whether the minimum peanut content of “peanut butter” should be 90 percent or 87 percent (Samaha 2006).1 But is this proof that regulation generally takes too long (or is “ossified”), proof of a nightmarish “undue process” that has infected our administrative state, as Samaha (2006:603) has suggested?2

Before concluding that the regulatory system is broken—or even that it has recently become broken—it is worth thinking about how we might measure and observe this phenomenon. In this chapter, we focus largely on delay in the notice and comment rulemaking process as it takes place under Section 553 of the Administrative Procedure Act (1946).3 Of course, delay is not the only possible conception of regulatory failure, and it might not even be the best one. But administrative law scholars have long focused on regulatory delay as highly undesirable and one of the principal evils of modern bureaucratic reality. Additionally, delay is

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