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NCJRS Abstract

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NCJ Number: 98322 Find in a Library
Title: Negotiating Regulations - A Cure for the Malaise?
Journal: Environmental Impact Assessment Review  Volume:3  Issue:1  Dated:(1983)  Pages:75-91
Author(s): P J Harter
Date Published: 1982
Page Count: 17
Format: Article
Language: English
Country: United States of America
Annotation: A historical analysis of the development of procedures for administrative rulemaking in the Federal Government accompanies a proposal that this rulemaking rest on formal negotiations among those directly affected.
Abstract: Administrative rulemaking has long been the subject of debate regarding whether agencies should have broad discretion and flexibility in rulemaking and action or whether they should have a narrow role in implementing programs and meet formal procedural requirements in making rules. Although the Administrative Procedure Act of 1946 forms the basis of agency rulemaking, judicial decisions and substantive statutes have often modified regulatory procedure. The current rulemaking process is largely adversarial. The would-be regulators, the beneficiaries of the prospective regulation, and the regulatees are all poised against each other. Although this process ensures that all interested parties will develop factual and policy arguments, it also makes negotiation and compromise problematic. In addition, the overall process lacks political legitimacy. A different approach is needed which will use the parties' creative resources and develop public confidence in rulemaking. Developing rules through negotiations would accomplish this. All parties would take part and extreme positions would be avoided. The parties would agree on the relevant data needed for developing the rule and would be able to focus on details rather than only on major points. Nevertheless, finding representation for parties, ensuring participation by all parties, coping with demands for confidentiality while responding to the general public, and other issues will all present challenges. Having an independent, neutral convenor seems essential to the process. However, regulatory negotiation seems promising when the issues are well-defined, when a limited number of parties are involved, and when a decision is both imminent and inevitable. Empaneling an advisory committee would permit agencies to use this approach under current law. Statutory authorization should also occur. The June 1982 recommendations of the Administrative Conference of the United States are included; they urge this approach. Forty-three references and 13 notes are listed.
Index Term(s): Administrative rulemaking; Federal regulations; Negotiation
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