This dissertation addresses three questions about administrative rulemaking: • Do comments submitted on proposed rules vary in identifiable ways? • Do these differences directly relate to the likelihood that recommendations will be associated with changes to regulations? • Can these characteristics be incorporated into a model that accurately predicts whether or not suggestions will coincide with changes to administrative rules? Using data collected from the Commonwealth of Virginia's Regulatory Town Hall, I analyze 2,534 comments that address 67 regulations proposed by state agencies during an 11-year period. I find that submissions do differ in meaningful ways. I also find statistically significant evidence that those differences are related to the probability that a requested change coincides with a subsequent modification to a rule. The principal result of this research is a model that predicts with a high degree of accuracy the outcome of participants' recommendations to alter proposed regulations. I also demonstrate the implications of these results and how failure to account for these differences undermines the legitimacy of conclusions that can be drawn from studies of notice-and-comment rulemaking. The primary contribution of this dissertation is methodological, but the empirical evidence presented here also raises questions about the value of citizen participation in notice-and-comment rulemaking in its current form. As a result, it challenges contentions that participation contributes to the democratic legitimacy of bureaucracy, serves as a safeguard against the influences of organized interests, or improves the substantive quality of administrative decisions. / Ph. D.

Esta tese tem por finalidade analisar o movimento de processualização da atividade normativa da Administração Pública e a dinâmica do processo administrativo normativo no Brasil. Defende-se que o processo administrativo consiste em requisito de validade dos regulamentos editados pelo Poder Público, no exercício da competência normativa, na medida em que se reconhece no regime de direito administrativo o dever de a Administração Pública realizar processo para edição de seus atos normativos. A exposta tese contrapõe-se ao cenário tradicional de edição de regulamentos pelo Poder Público, desprovido de processo administrativo e sem contar com a participação administrativa. O estudo é dividido em quatro frentes de análise. Na primeira, o perene debate sobre o poder normativo é reconstruído com o objetivo principal de verificar as raízes da ausência de realização de processo para exercício desta competência pela Administração. Na sequência, o movimento de processualização da atividade administrativa no Brasil é descrito a partir de fontes primárias, em três fases: os antecedentes da processualidade administrativa, a constitucionalização do processo administrativo e a construção da jurisprudência constitucional sobre o tema, bem como a recente codificação do processo administrativo. A experiência do processo administrativo normativo é objeto de estudo empírico fundamentalmente pela análise do regime jurídico das Agências Reguladoras federais. Pretende-se apresentar um quadro geral de técnicas e debates que possa ser útil para futuras discussões sobre o instituto no Direito Administrativo brasileiro. Nessa linha, traça-se paralelo com o sistema norte-americano, já experimentado no estudo do processo normativo. Por fim, a dinâmica do processo administrativo normativo é apresentada considerando os valores de governança pública, tomados como parâmetros de interpretação das leis gerais de processo administrativo e demais normas correlatas. Assim, as seguintes fases do processo normativo são objeto de estudo: ato de instauração, instrução processual e fase deliberativa. Na conclusão, visão prospectiva sobre o processo administrativo normativo é apresentada com base nos achados de pesquisa da tese. / This dissertation aims to analyze the procedure movement of public normative action and the rulemaking dynamics in Brazil. It is argued that the administrative procedure is a requirement for Public Administration rulemaking as the exercise of legislative power, since administrative law establishes the duty of rulemaking. This thesis opposes the traditional scenario of enactment of rules by Agencies, which is characterized by the lack of both rulemaking and public participation. The analysis is organized in four chapters. The first chapter addresses the perennial debate on Public Administrations normative power and identifies the reasons of the absence of rulemaking. The second chapter focuses on the procedure movement of administrative action in Brazil, which is described through primary sources in three phases: the antecedents of administrative process; constitutionalization of the administrative process and development of its constitutional jurisprudence; and the late codification of administrative procedure. Chapter three presents the results of the empirical study on Regulatory Agencies rules; the study dealt specifically with the rulemaking practice. An overview of techniques and debates encompassed in this procedure is provided as well; this may be useful for future discussions regarding the issues of Brazilian administrative law. Furthermore, it draws a parallel with the system of American administrative law, indicating that the study of rulemaking in the American system is already well-developed. The final chapter presents the dynamic of rulemaking from the perspective of public governances values that are taken as interpretation parameters of the general administrative procedure acts, and other statutes. Therefore, the following stages of rulemaking are analyzed in the dissertation: initiating rulemaking, findings and reasons, and issuance of the rule. In the conclusion, it provides a prospective view of rulemaking based on the research findings in this dissertation.

Local communities, individuals, visitors, and special interest groups are often called upon to participate in the decision making processes of the National Park Service (NPS). Cape Hatteras National Seashore (CAHA) engaged in a Negotiated Rulemaking process to create an Off Road Vehicle Management Rule. The rulemaking process involved park stakeholders working with the NPS as a Negotiated Rulemaking Advisory Committee with the goal of creating an Off Road Vehicle Management Rule for CAHA. This dissertation used Senecah's practical theory Trinity of Voice to evaluate CAHA's negotiated rulemaking process. Interviews with park staff and negotiated rulemaking participants provided information about the presence of the grammars of TOV in this decision making process. This dissertation described the affects of negotiated rulemaking on the perceptions of participants towards the park resources and management of the national seashore. The effect of the negotiated rulemaking process was an increase in the knowledge of participants about the decision making process employed by the NPS. In general, participants also developed a stronger relationship with park management. This research suggests critical dimensions for achieving widespread social legitimacy through meaningful public involvement in decision making.

<p>There have been few efforts to evaluate the actual and perceived effectiveness of environmental management programs created by consensus-based, multi-stakeholder negotiation or negotiated rulemaking. Previous evaluations have used perceived success among participants as a proxy for actual effectiveness, but seldom have investigated the ecological outcomes of these negotiations. Fewer still, if any, have compared the actual and perceived outcomes. Here I evaluate and compare the social and ecological outcomes of the negotiated rulemaking process of marine mammal take reduction planning. Take reduction planning is mandated by the U.S. Marine Mammal Protection Act (MMPA) to reduce the fisheries-related serious injuries and mortalities of marine mammals (bycatch) in U.S. waters to below statutory thresholds. Teams of fishermen, environmentalists, researchers, state and federal managers, and members of Regional Fisheries Management Councils and Commissions create consensus-based rules to mitigate bycatch, called Take Reduction Plans. There are six active Take Reduction Plans, one Take Reduction Strategy consisting of voluntary measures, and one plan that was never implemented. It has been 20 years since marine mammal take reduction planning was incorporated into the MMPA. Early evaluations were promising, but identified several challenges. In the past decade or more, the National Marine Fisheries Service (NMFS) has implemented measures to set up the teams for success.</p><p>I used data from formal Stock Assessment Reports to assess and rank the actual ecological success of five Take Reduction Plans (Harbor Porpoise, Bottlenose Dolphin, Atlantic Large Whale, Pelagic Longline, and Pacific Offshore Cetacean) in mitigating the bycatch of 17 marine mammal stocks. In addition, I employed social science data collection and analytical methods to evaluate Take Reduction Team participants' opinions of the take reduction negotiation process, outputs, and outcomes with respect to the ingredients required for successful multi-stakeholder, consensus-based negotiation (team membership, shared learning, repeated interactions, facilitated meetings, and consensus-based outputs). These methods included surveying and interviewing current and former Take Reduction Team participants; using Structural Equation Models (SEMs) and qualitative methods to characterize participant perceptions across teams and stakeholder groups; and identifying and exploring the reasons for similarities and differences among respondents, teams, and stakeholder groups. I also employed SEMs to quantitatively examine the relationship between actual and perceived ecological success, and contrasted actual and perceived outcomes by comparing their qualitative rankings.</p><p>Structural Equation Models provided a valid framework in which to quantitatively examine social and ecological data, in which the actual ecological outcomes were used as independent predictors of the perceived outcomes. Actual improvements in marine mammal bycatch enhanced stakeholder opinions about the effectiveness of marine mammal Take Reduction Plans. The marine mammal take reduction planning process has all of the ingredients necessary for effective consensus-based, multi-stakeholder negotiations (Chapter 2). It is likely that the emphasis that the National Marine Fisheries Service places on empirical information and keeping stakeholders informed about bycatch, marine mammal stocks, and fisheries facilitated this relationship. Informed stakeholders also had relatively accurate perceptions of the actual ecological effectiveness of the Take Reduction Plans (Chapter 3). The long timeframes over which the teams have been meeting generally have increased cooperation. The professionally trained, neutral facilitators have produced fair negotiations, in which most individuals felt they had an opportunity to contribute. Participant views of fairness significantly influenced their satisfaction with Take Reduction Plans, which significantly affected their perceptions about the effectiveness of those plans (Chapter 2). The mandate to create a consensus-based output has, for the most part, minimized defections from the negotiations and facilitated stakeholder buy-in. </p><p>In general, marine mammal take reduction planning is a good negotiated rulemaking process, but has produced mixed results (Chapters 1 and 2). Successful plans were characterized by straightforward regulations and high rates of compliance. Unsuccessful plans had low compliance with complex regulations and sometimes focused on very small stocks. Large teams and those in the northeastern U.S. (Maine to North Carolina) were least successful at reducing bycatch, which was reflected in stakeholder views of the effectiveness of these teams. Take Reduction Team negotiations have not always produced practical or enforceable regulations. Implementation of take reduction regulations is critical in determining plan success and identifying effective mitigation measures, but because of a lack of monitoring, has not been characterized consistently across most teams. Additionally, elements like the "Other Special Measures Provision" in the Harbor Porpoise Take Reduction Plan have undermined the negotiation process by allowing the National Marine Fisheries Service to alter consensus-based elements without consensus from the team, which has led to hostility, mistrust, and frustration among stakeholders. </p><p>The final chapter of this dissertation provides recommendations to improve the outcomes and make them more consistent across teams. I based these recommendations on the information gathered and analyzed in the first three chapters. They are grouped into four broad categories - team membership, social capital, fairness, and plan implementation. If the National Marine Fisheries Service implements these suggestions, both perceived and actual ecological effectiveness of marine mammal Take Reduction Teams should improve, allowing these teams to fulfill their maximum potential.</p> / Dissertation

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Este trabalho apresenta, a partir de uma análise comparativa, o poder normativo das agências reguladoras no direito norte-americano e o poder normativo das agências reguladoras no direito brasileiro. Inicialmente, aborda os dois grandes sistemas jurídicos ocidentais: common law e romano-germânico. Após, analisa a origem, a definição e as principais características das agências reguladoras norte-americanas e das agências reguladoras brasileiras. Segue examinando no que consiste o poder normativo das agências reguladoras norte-americanas e o poder normativo das agências reguladoras brasileiras, em face das respectivas ordens jurídicas. Propõe, assim, identificar entre os dois modelos pontos comuns e divergentes, de modo a contribuir para a compreensão dos conceitos e institutos introduzidos nos últimos anos no plano político e jurídico do Estado brasileiro. This research presents, from a comparative analysis, the rulemaking power of the regulatory agencies in the North American law and the rulemaking power of the regulatory agencies in the Brazilian law. Initially, it deals with the two great occidental law systems: common law and German Romanic. Thereafter, it analyzes the origin, the definition and the main characteristics of the North American regulatory agencies and of the Brazilian regulatory agencies. It follows examining what the rulemaking power of the North American regulatory agencies and the rulemaking power of the Brazilian regulatory agencies consist of, regarding the respective law. Then, it proposes to identify common and divergent matters between the two analyzed models, so as to contribute to the comprehension of the concepts and institutions introduced in the past few years in the political and law order of the Brazilian State.

Administrative rules have played a central role in Ethiopian public administration since 1994 when the current constitution was adopted. However, if the formulation and implementation of the rules are not politically controlled, and proper accountability is not applied, these same rules could become threats instead of assurances of the rule of law and order. This case study explored what strategic controls and accountability measures are in place to regulate the rulemaking process. To inform the study, the political control of bureaucracy framework in general and the principal-agency model, in particular, were used. The central research question focused on strategies that ensure the political control and accountability of rulemaking in Ethiopia. Purposive sampling methods were employed, with interviews of five legislators and five appointed officials, as well as supportive legislative documents providing the data. The data were coded and thematically analyzed using a coding framework and a continuous iterative process. The results revealed that in Ethiopia there is a constitutional framework of control and accountability, but there is no political control mechanism in place, and no accountability measures have been taken. The study findings may indicate that there is a need for further studies on administrative and judicial review mechanisms and federated states' control mechanisms to fully understand the situation. The implication for social change includes awareness and attitudinal change of lawmakers and administrative authorities towards the importance of controlling and limiting the power to make rules. Positive social change is nearly impossible where unlimited and uncontrolled power is exercised.

Este trabalho apresenta, a partir de uma análise comparativa, o poder normativo das agências reguladoras no direito norte-americano e o poder normativo das agências reguladoras no direito brasileiro. Inicialmente, aborda os dois grandes sistemas jurídicos ocidentais: common law e romano-germânico. Após, analisa a origem, a definição e as principais características das agências reguladoras norte-americanas e das agências reguladoras brasileiras. Segue examinando no que consiste o poder normativo das agências reguladoras norte-americanas e o poder normativo das agências reguladoras brasileiras, em face das respectivas ordens jurídicas. Propõe, assim, identificar entre os dois modelos pontos comuns e divergentes, de modo a contribuir para a compreensão dos conceitos e institutos introduzidos nos últimos anos no plano político e jurídico do Estado brasileiro. This research presents, from a comparative analysis, the rulemaking power of the regulatory agencies in the North American law and the rulemaking power of the regulatory agencies in the Brazilian law. Initially, it deals with the two great occidental law systems: common law and German Romanic. Thereafter, it analyzes the origin, the definition and the main characteristics of the North American regulatory agencies and of the Brazilian regulatory agencies. It follows examining what the rulemaking power of the North American regulatory agencies and the rulemaking power of the Brazilian regulatory agencies consist of, regarding the respective law. Then, it proposes to identify common and divergent matters between the two analyzed models, so as to contribute to the comprehension of the concepts and institutions introduced in the past few years in the political and law order of the Brazilian State.

Este trabalho apresenta, a partir de uma análise comparativa, o poder normativo das agências reguladoras no direito norte-americano e o poder normativo das agências reguladoras no direito brasileiro. Inicialmente, aborda os dois grandes sistemas jurídicos ocidentais: common law e romano-germânico. Após, analisa a origem, a definição e as principais características das agências reguladoras norte-americanas e das agências reguladoras brasileiras. Segue examinando no que consiste o poder normativo das agências reguladoras norte-americanas e o poder normativo das agências reguladoras brasileiras, em face das respectivas ordens jurídicas. Propõe, assim, identificar entre os dois modelos pontos comuns e divergentes, de modo a contribuir para a compreensão dos conceitos e institutos introduzidos nos últimos anos no plano político e jurídico do Estado brasileiro. This research presents, from a comparative analysis, the rulemaking power of the regulatory agencies in the North American law and the rulemaking power of the regulatory agencies in the Brazilian law. Initially, it deals with the two great occidental law systems: common law and German Romanic. Thereafter, it analyzes the origin, the definition and the main characteristics of the North American regulatory agencies and of the Brazilian regulatory agencies. It follows examining what the rulemaking power of the North American regulatory agencies and the rulemaking power of the Brazilian regulatory agencies consist of, regarding the respective law. Then, it proposes to identify common and divergent matters between the two analyzed models, so as to contribute to the comprehension of the concepts and institutions introduced in the past few years in the political and law order of the Brazilian State.

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