Переговоры при разработке нормативных актов в США

Process in American administrative law
Negotiated rulemaking is a process in American administrative law, used by federal agencies, in which representatives from a government agency and affected interest groups negotiate the terms of a proposed administrative rule. The agency publishes the proposed rule in the Federal Register and then follows the usual rulemaking procedure of soliciting public comments, which are evaluated for inclusion in the final rule.

Negotiated rulemaking, sometimes abbreviated as "neg reg" or "reg neg," emerged most prominently in the early 1980s because of a concern that traditional rulemaking procedures had become too adversarial. John Dunlop, Secretary of Labor under President Gerald Ford, first introduced the idea of formally engaging affected interests in negotiations over federal regulations in the 1970s. In 1982 Phillip Harter, an administrative law expert, developed the idea of neg reg further in a report to the Administrative Conference of the United States and then a law review article, proposing negotiation as a means of alleviating the "malaise" that hindered the existing federal rulemaking process. The U. S. Environmental Protection Agency and the United States Department of Transportation were the first agencies to experiment with negotiated rulemaking. Other agencies were more reluctant to try it, out of concern about its legality. Those questions were answered when the United States Congress enacted the Negotiated Rulemaking Act of 1990 (Neg Reg Act), "to encourage agencies to use negotiated rulemaking when it enhances the informal rulemaking process." The Neg Reg Act was reauthorized in 1996 and is now incorporated into the Administrative Procedure Act, at 5 U. S. C. §§ 561 570. A believer in the effectiveness of neg reg, President Clinton encouraged agencies to use the approach in Executive Order #12866 and in a subsequent Presidential Memorandum. Although only a small fraction of all regulations have been developed through negotiated rulemaking, a variety of federal government agencies have used the procedure, including the U. S. Departments of Education, Housing and Urban Development, Health and Human Services, the Interior, Labor, and Transportation, and the U. S. Environmental Protection Agency. Negotiated rulemaking is currently required under the Higher Education Act and the Native American Housing Assistance and Self Determination Act.

Usually, an agency is not mandated to use negotiated rulemaking, but does so by choice. Its decision to use negotiated rulemaking is not subject to review by the courts. An agency can publish a proposal adopted by its negotiating committee, but the Negotiated Rulemaking Act does not require it. Negotiated rulemaking typically takes six months to a year and involves multi day meetings approximately once a month.

In a study published in 1997, University of Pennsylvania Law School Professor Cary Coglianese reported that negotiated rulemaking did not provide the benefits advocates of the procedure had promised, namely decreased litigation and more expeditious rulemaking. At the agency that had conducted the most rules developed with neg reg at the time of his research the EPA 50% of the negotiated rules resulted in litigation, compared with an overall rate closer to 25%. In a reply article, Coglianese rebutted Harter's criticisms, stating that "Harter makes unfounded assertions about [the original] study, disregards basic principles of empirical analysis, and continues to advance bold claims for negotiated rulemaking unsupported by reliable empirical analysis." In a subsequent paper, public policy mediator Susan Podziba has argued that negotiated rulemaking allows the benefits of face to face interaction and cooperation. She has also claimed that it allows all parties to share information and take advantage of the different skill sets of committee members. Coglianese has outlined several limitations in the Langbein study Professor Jody Freeman of Harvard Law School argues against this idea and asserts that the phrase "public interest" is far too vague to act as a variable in the assessment of negotiated rulemaking. In 2006, the U. S. Department of the Interior and the U. S. Environmental Protection Agency Public co sponsored a workshop to reflect on lessons learned during past negotiated rulemakings conducted throughout the federal government. According to background materials prepared for the workshop, more than 30 federal negotiated rulemakings occurred between 1996 and 2005, including the No Child Left Behind Act, Off Road Vehicle Regulations at Cape Cod National Seashore, and Worker Safety Standards for the Use of Cranes and Derricks in Construction.