Tailored Participation: Modernizing the APA Rulemaking Procedures
Dorit Rubinstein Reiss
University of California Hastings College of the Law
July 18, 2008
When making rules, agencies are required by the APA to go through notice and comment procedures. Considering the vast array of tasks agencies do and the dramatic differences between different rules, such a uniform approach is bound to be wrong at times. In addition, these procedures have been criticized for not providing adequate participation. This article suggests changing the APA to allow agencies a choice between three mechanisms to review proposed rules: peer review, notice and comment, and deliberative democracy mechanisms; an agency's proposed review mechanism will be publish and subjected to judicial review before hand, but if it was not challenged, the result can only be challenged based on the logic of the review mechanism. Such a choice will allow agencies to tailor the form of review to the goals they are trying to achieve. When it is the science and expertise of a rule that needs to be evaluated, peer review is the appropriate method of evaluation; when an agency wants to receive information from the public, notice and comment is a suitable procedure; however, when dealing with a controversial issue where public opposition is anticipated, an agency should use deliberative mechanisms to achieve such consensus. Agencies have already experimented with different mechanisms of review, but the current system forces them to go through the notice and comment process regardless of what else they have done, which may lead to undermining of results achieved through other processes. The proposed reform will allow agencies to pursue other methods of review. The article also addresses judicial review of the proposed mechanisms, as well as concerns about abuse of discretion by agencies.
Number of Pages in PDF File: 77
Keywords: accountability, participation, administrative agencies, administrative law, rulemaking
JEL Classification: G18, R50working papers series
Date posted: July 22, 2008 ; Last revised: November 14, 2012
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