Journal articles on the topic 'Negotiated rulemaking'

Web accessibility requires designing and developing websites so that people with disabilities can use them without barriers. While the internet has become central to daily life, websites have overwhelmingly remained inaccessible to the millions of users who have disabilities. Congress enacted the Americans with Disabilities Act (ADA) to combat discrimination against people with disabilities. Passed in 1990, it lacks any specific mention of the internet Courts are split as to whether the ADA applies to websites, and if so, what actions businesses must take to comply with the law. Further complicating matters, the Department of Justice (DOJ) initiated the rulemaking process for web accessibility in 2010, only to terminate it seven years later without issuing a rule—leaving the disability community without meaningful online access and businesses without clear standards. Meanwhile, complaints about the accessibility of websites have flooded federal agencies and the courts. Against that backdrop, this Note calls for the DOJ to use negotiated rulemaking, a regulatory innovation from the 1980s that has since faded in use, to achieve web accessibility. Given that the Supreme Court has declined to resolve whether the ADA’s protections apply to the internet, the business and disability communities should come together through negotiated rulemaking to build consensus on web accessibility.

Administrative agencies in the United States have developed highly formalized and complex processes for public participation in rulemaking, especially in areas of social regulation such as the environment and workplace safety and health. This case study considers the significance of participation in formal rulemaking processes by connecting the quality of participation to the strategic possibilities in litigation between private interests and regulatory agencies. Specifically, the strategic possibilities of the leading interest groups engaged in the Occupational Safety and Health Administration's major “Lockout/Tagout” rulemaking illustrate how legal resources are created through the development of evidence and claims in hearings. Written and oral presentations, apparently aimed directly at persuading the agency, indirectly affect agency deliberations by increasing the possibility that courts will constrain agency decisionmaking, thus creating opportunities for negotiated alternatives. The case ultimately serves as a paradigmatic example of how bargaining arises at the micro level of policy systems that are infused with broader legal structures.

This paper argues that participatory governance initiatives like co-management can be made effective through agency rulemaking. Using the Mackenzie Valley Environmental Impact Review Board as a case study, this paper affirms that it is possible for marginalized stakeholders to participate in co-management and alter decision-making. By using its formal authority to generate rules that reflect community perspectives, this board contextualized environmental assessment in community-based perspectives. The study of participation presented here illustrates: 1) that a high level of agency support for community participation in rule-making can lead to rules which reflect community perspectives; and 2) that agency implementation of community perspectives has led to the increased use of stakeholder collaboration through private agreement. Nonetheless, the paper also addresses limitations on the ability to translate social needs into privately negotiated agreements where negotiations depart from highly commoditized terms. Consequently, this paper questions the use of negotiated agreements to meet the goals of stakeholder participation, as conceived by deliberative democratic strands of new governance.Dans cet article, l’auteure soutient que le pouvoir de règlementation d’un organisme peut rendre plus efficace de nouvelles initiatives en matière de gouvernance telles que la cogestion. Prenant l’Office d’examen des répercussions environnementales de la vallée du Mackenzie comme exemple, elle affirme que des parties prenantes marginalisées ont la possibilité de participer à de nouvelles modalités de gouvernance comme la cogestion et d’influer sur la prise de décision. En exerçant son pouvoir d’adopter des règles inspirées des valeurs communautaires, l’Office a procédé à une évaluation environnementale en tenant compte du contexte communautaire. L’étude de participation présentée ici démontre: 1) que, lorsqu’un organisme appuie fortement la participation de la collectivité à l’élaboration des règles, les règles adoptées peuvent davantage refléter les valeurs communautaires; et 2) que l’adhésion de l’organisme aux valeurs communautaires favorise une plus grande collaboration entre les parties prenantes, grâce à la conclusion d’ententes privées. Quoi qu’il en soit, l’article révèle également que la capacité d’exprimer des besoins sociaux dans des ententes privées négociées est limitée. Lorsque les négociations dévient des termes hautement standardisés et tentent d’inclure différentes valeurs communautaires, la participation des parties prenantes est restreinte. L’article remet par conséquent en question l’utilisation d’ententes négociées pour atteindre les buts fixés en matière de participation des parties prenantes, telle que les conçoivent les courants de pensée s’appuyant sur la démocratie délibérative au regard de la nouvelle gouvernance.

ABSTRACT The State of Texas has developed an innovative scheme for resolving contentious issues in assessing natural resource damages from coastal oil spills. The Texas statute and regulations provide for mediation among state natural resource trustees to resolve differences among them when assessing natural resource damages. The state trustees have formally signed a memorandum of agreement to institute mediation whenever they have disputes about any aspect of damage assessment in a case. The statute and regulations also require the responsible person (the spiller) to mediate any disagreement about the assessment as a prerequisite to the jurisdiction of any court. This provision gives both the trustees and the responsible person an opportunity to reach a negotiated agreement without initiating expensive and lengthy litigation. The regulations implementing damage assessment procedures and protocols were developed through the use of a negotiated rulemaking process. This process brought together representatives from state trustee agencies, the regulated community, and citizen environmental groups. The Texas statute and rules require the state natural resource trustees to invite the responsible person to participate in all phases of the damage assessment process. By specifically providing for a negotiated assessment process, this provision encourages cooperation and discourages duplication and withholding of vital information. The regulations are designed to encourage the trustees and the responsible person to coordinate information, studies, and assessment procedures. The goal is to initiate restoration of the injured resources as quickly as possible without a “battle of the experts.” The regulations require the state trustees to coordinate their assessment activities in conjunction with federal natural resource trustees. The obvious benefits of the arrangement are to promote intergovernmental cooperation and coordination and to allow the responsible person to deal with a unified trustee response to damage assessment. The benefits to all parties are the swift initiation of restoration actions, efficient use of expended funds, and an open process.

ABSTRACT As observed during several recent major oil spills, most notably the BP Deepwater Horizon Oil Spill, the current regulatory planning standard for mechanical recovery equipment has been often scrutinized as an inadequate means for vessel and facility plan holders to calculate their oil spill equipment needs. Effective Daily Recovery Capacity, or EDRC, was developed during a negotiated rulemaking process following the enactment of the Oil Pollution Act of 1990. During an IOSC 2011 Workshop sponsored by the American Petroleum Institute (API), the Bureau of Safety and Environmental Enforcement (BSEE), and the U.S. Coast Guard, there was general agreement among workshop participants that EDRC is not an accurate planning tool for determining oil spill response equipment needs. In addition, many attendees agreed that EDRC should account for the skimmer system as a whole, not individual skimmer components such as pump nameplate capacity. In 2012, the Bureau of Safety and Environmental Enforcement (BSEE) and the U.S. Coast Guard initiated and completed a third-party, independent research contract to review the existing EDRC regulations and make recommendations for improving planning standards for mechanical recovery. The contractor's final report methodology is based on oil spill thickness as a fundamental component in calculating mechanical recovery potential, and it emphasizes the importance of response time on-scene and storage for recovered oil. This research provides a more realistic and scientific approach to evaluating skimmer system performance, and more accurately accounts for a wide range of operating conditions and external influences. The federal government, with input from the oil industry, OSRO community, and other interested stakeholders, now has a sound methodology to serve as a starting point for redesigning the current planning standard that more accurately reflects skimmer system performance.

AbstractThis article explores the ethical impact of cultural recognition within the regulatory negotiation (reg-neg) process as it is currently being used by federal agencies in the United States. The authors use a blend of theory and practice to explore the ethical necessity, feasibility, and practicality of including cultural guidelines within the reg-neg process. Using the findings from extensive prior research on negotiated rulemaking at the U.S. Environmental Protection Agency (EPA) as a foundation, we illustrate the lessons learned from years of regulatory negotiations conducted by the pioneer of reg-neg. We then show how these lessons have been brought under an umbrella of ``cultural recognition'' within the consensus-based regulatory negotiation being used to improve relations between American Indian nations and the U.S. government. We discuss the ethical and practical implications of incorporating cultural sensitivity into the reg-neg process.

IntroductionAccounts of mentoring relationships inevitably draw attention to hierarchies of expertise, knowledge and learning. While public concerns about both the risks and benefits for young people of social media, little attention has been given to the nature of the mentoring role that parents and families play alongside of schools. This conceptual paper explores models of mentorship in the context of family dynamics as they are affected by social media use. This is a context that explicitly disrupts hierarchical structures of mentoring in that new media, and particularly social media use, tends to be driven by youth cultural practices, identity formation, experimentation and autonomy-seeking practices (see for example: Robards; boyd; Campos-Holland et al.; Hodkinson). A growing body of research supports the notion that young people are more skilled in navigating social media platforms than their parents (FOSI; Campos-Holland et al.). This research establishes that uncertainty and tension derived from parents’ impression that their children know more about social media they do (FOSI; Sorbring) has brought about a market for advice and educational programs. In the content of this paper it is notable that when family dynamics and young people’s social media use are addressed through notions of digital citizenship or cyber safety programs, a hierarchical mentorship is assumed, but also problematised; thus the expertise hierarchy is inverted. This paper argues that use of social media platforms, networks, and digital devices challenges traditional hierarchies of expertise in family environments. Family members, parents and children in particular, are involved in ongoing, complex conversations and negotiations about expertise in relation to technology and social media use. These negotiations open up an alternative space for mentorship, challenging traditional roles and suggesting the need for cooperative processes. And this, in turn, can inspire new ways of relating with and through social media and mobile technologies within the family.Inverting Expertise: Social Media, Family and MentoringSocial media are deeply embedded in everyday routines for the vast majority of the population. The emergence of the ‘networked society’, characterised by increasing and pervasive digital and social connectivity, has the potential to create new forms of social interactions within and across networks (Rainie and Wellman), but also to reconfigure intergenerational and family relations. In this way, social media introduces new power asymmetries that affect family dynamics and in particular relationships between young people and their parents. This relatively new mediated environment, by default, exposes young people to social contexts well beyond family and immediate peers making their lived experiences individual, situational and contextual (Swist et al.). The perceived risks this introduces can provoke tensions within families looking to manage those uncertain social contexts, in the process problematising traditional structures of mentorship. Mentoring is a practice predominantly understood within educational and professional workplace settings (Ambrosetti and Dekkers). Although different definitions can be found across disciplines, most models position a mentor as a more experienced knowledge holder, implying a hierarchical relationship between a mentor and mentee (Ambrosetti and Dekkers). Stereotypically, a mentor is understood to be older, wiser and more experienced, while a mentee is, in turn, younger and in need of guidance – a protégé. Alternative models of mentorship see mentoring as a reciprocal process (Eby, Rhodes and Allen; Naweed and Ambrosetti).This “reciprocal” perspective on mentorship recognises the opportunity both sides in the process have to contribute and benefit from the relationship. However, in situations where one party in the relationship does not have the expected knowledge, skills or confidence, this reciprocity becomes more difficult. Thus, as an alternative, asymmetrical or cooperative mentorship lies between the hierarchical and reciprocal (Naweed and Ambrosetti). It suggests that the more experienced side (whichever it is) takes a lead while mentoring is negotiated in a way that meets both sides’ needs. The parent-child relationship is generally understood in hierarchical terms. Traditionally, parents are considered to be mentors for their children, particularly in acquiring new skills and facilitating transitions towards adult life. Such perspectives on parent-child relationships are based on a “deficit” approach to youth, “whereby young people are situated as citizens-in-the-making” (Collin). Social media further problematises the hierarchical dynamic with the role of knowledge holder varying between and within the family members. In many contemporary mediated households, across developed and wealthy nations, technologically savvy children are actively tailoring their own childhoods. This is a context that requires a reconceptualisation of traditional mentoring models within the family context and recognition of each stakeholder’s expertise, knowledge and agency – a position that is markedly at odds with traditional deficit models. Negotiating Social Media Use within the FamilyIn the early stages of the internet and social media research, a generational gap was often at the centre of debates. Although highly contested, Prensky’s metaphor of digital natives and digital immigrants persists in both the popular media and academic literature. This paradigm portrays young people as tech savvy in contrast with their parents. However, such assumptions are rarely grounded in empirical evidence (Hargittai). Nonetheless, while parents are active users of social media, they find it difficult to negotiate social media use with their children (Sorbring). Some studies suggest that parental concerns arise from impressions that their children know more about social media than they do (FOSI; Wang, Bianchi and Raley). Additionally, parental concern with a child’s social media use is positively correlated with the child’s age; parents of older children are less confident in their skills and believe that their child is more digitally skillful (FOSI). However, it may be more productive to understand social media expertise within the family as shared: intermittently fluctuating between parents and children. In developed and wealthy countries, children are already using digital media by the age of five and throughout their pre-teen years predominantly for play and learning, and as teenagers they are almost universally avid social media users (Nansen; Nansen et al.; Swist et al.). Smartphone ownership has increased significantly among young people in Australia, reaching almost 80% in 2015, a proportion nearly identical to the adult population (Australian Communications and Media Authority). In addition, most young people are using multiple devices switching between them according to where, when and with whom they connect (Australian Communications and Media Authority). The locations of internet use have also diversified. While the home remains the most common site, young people make use of mobile devices to access the internet at school, friend’s homes, and via public Wi-Fi hotspots (Australian Communications and Media Authority). As a result, social media access and engagement has become more frequent and personalised and tied to processes of socialisation and well-being (Sorbring; Swist et al.). These developments have been rapid, introducing asymmetry into the parent-child mentoring dynamic along with family tensions about rules, norms and behaviours of media use. Negotiating an appropriate balance between emerging autonomy and parental oversight has always featured as a primary parenting challenge and social media seem to have introduced a new dimension in this context. A 2016 Pew report on parents, teens, and digital monitoring reveals that social media use has become central to the establishment of family rules and disciplinary practices, with over two thirds of parents reporting the use of “digital grounding” as punishment (Pew). As well as restricting social media use, the majority of parents report limiting the amount of time and times of day their children can be online. Interestingly, while parents engage in a variety of hands-on approaches to monitoring and regulating children’s social media use, they are less likely to use monitoring software, blocking/filtering online content, tracking locations and the like (Pew). These findings suggest that parents may lack confidence in technology-based restrictions or prefer pro-active, family based approaches involving discussion about appropriate social media use. This presents an opportunity to explore how social media produces new forms of parent-child relationships that might be best understood through the lens of cooperative models of mentorship. Digital Parenting: Technological and Pedagogical Interventions Parents along with educators and policy makers are looking for technological solutions to the knowledge gap, whether perceived or real, associated with concerns regarding young people’s social media use. Likewise, technology and social media companies are rushing to develop and sell advice, safety filters and resources of all kinds to meet such parental needs (Clark; McCosker). This relatively under-researched field requires further exploration and dissociation from the discourse of risk and fear (Livingstone). Furthermore, in order to develop opportunities modelled on concepts of cooperative mentoring, such programs and interventions need to move away from hierarchical assumptions about the nature of expertise within family contexts. As Collin and Swist point out, online campaigns aimed at addressing young people and children’s safety and wellbeing “are often still designed by adult ‘experts’” (Collin and Swist). A cooperative mentoring approach within family contexts would align with recent use of co-design or participatory design within social and health research and policy (Collin and Swist). In order to think through the potential of cooperative mentorship approaches in relation to social media use within the family, we examine some of the digital resources available to parents.Prominent US cyber safety and digital citizenship program Cyberwise is a commercial website founded by Diana Graber and Cynthia Lieberman, with connections to Verizon Wireless, Google and iKeepSafe among many other partnerships. In addition to learning resources around topics like “Being a Responsible Citizen of the Digital World”, Cyberwise offers online and face to face workshops on “cyber civics” in California, emphasising critical thinking, ethical discussion and decision making about digital media issues. The organisation aims to educate and support parents and teachers in their endeavor to guide young people in civil and safe social media use. CyberWise’s slogan “No grown up left behind!”, and its program of support and education is underpinned by and maintains the notion of adults as lacking expertise and lagging behind young people in digital literacy and social media skills. In the process, it introduces an additional level of expertise in the cyber safety expert and software-based interventions. Through a number of software partners, CyberWise provides a suite of tools that offer parents some control in preventing cyberbullying and establishing norms for cyber safety. For example, Frienedy is a dedicated social media platform that fosters a more private mode of networking for closed groups of mutually known people. It enables users to control completely what they share and with whom they share it. The tool does not introduce any explicit parental monitoring mechanisms, but seeks to impose an exclusive online environment divested of broader social influences and risks – an environment in which parents can “introduce kids to social media on their terms when they are ready”. Although Frienedy does not explicitly present itself as a monitoring tool, it does perpetuate hierarchical forms of mentorship and control for parents. On the other hand, PocketGuardian is a parental monitoring service for tracking children’s social media use, with an explicit emphasis on parental control: “Parents receive notification when cyberbullying or sexting is detected, plus resources to start a conversation with their child without intruding child’s privacy” (the software notifies parents when it detects an issue but without disclosing the content). The tool promotes its ability to step in on behalf of parents, removing “the task of manually inspecting your child's device and accounts”. The software claims that it analyses the content rather than merely catching “keywords” in its detection algorithms. Obviously, tools such as PocketGuardian reflect a hierarchical mentorship model (and recognise the expertise asymmetry) by imposing technological controls. The software, in a way, fosters a fear of expertise deficiency, while enabling technological controls to reassert the parent-child hierarchy. A different approach is exemplified by the Australian based Young and Well Cooperative Research Centre, a “living lab” experiment – this is an overt attempt to reverse deliberate asymmetry. This pedagogical intervention, initially taking the form of an research project, involved four young people designing and delivering a three-hour workshop on social networking and cyber safety for adult participants (Third et al.). The central aim was to disrupt the traditional way adults and young people relate to each other in relation to social media and technology use and attempted to support learning by reversing traditional roles of adult teacher and young student. In this way ‘a non-hierarchical space of intergenerational learning’ was created (Third et al.). The result was to create a setting where intergenerational conversation helped to demystify social media and technology, generate familiarity with sites, improve adult’s understanding of when they should assist young people, and deliver agency and self-efficacy for the young people involved (7-8). In this way, young people’s expertise was acknowledged as a reflection of a cooperative or asymmetrical mentoring relationship in which adult’s guidance and support could also play a part. These lessons have been applied and developed further through a participatory design approach to producing apps and tools such as Appreciate-a-mate (Collin and Swist). In that project “the inclusion of young people’s contexts became a way of activating and sustaining attachments in regard to the campaign’s future use”(313).In stark contrast to the CyberWise tools, the cooperative mentoring (or participatory design) approach, exemplified in this second example, has multiple positive outcomes: first it demystifies social media use and increases understanding of the role it plays in young people’s (and adults’) lives. Second, it increases adults’ familiarity and comfort in navigating their children’s social media use. Finally, for the young people involved, it supports a sense of achievement and acknowledges their expertise and agency. To build sustainability into these processes, we would argue that it is important to look at the family context and cooperative mentorship as an additional point of intervention. Understood in this sense, cooperative and asymmetrical mentoring between a parent and child echoes an authoritative parenting style which is proven to have the best outcome for children (Baumrind), but in a way that accommodates young people’s technology expertise.Both programs analysed target adults (parents) as less skilful than young people (their children) in relation to social media use. However, while first case study, the technology based interventions endorses hierarchical model, the Living Lab example (a pedagogical intervention) attempts to create an environment without hierarchical obstacles to learning and knowledge exchange. Although the parent-child relationship is indubitably characterised by the hierarchy to some extent, it also assumes continuous negotiation and role fluctuation. A continuous process, negotiation intensifies as children age and transition to more independent media use. In the current digital environment, this negotiation is often facilitated (or even led) by social media platforms as additional agents in the process. Unarguably, digital parenting might implicate both technological and pedagogical interventions; however, there should be a dialogue between the two. Without presumed expertise roles, non-hierarchical, cooperative environment for negotiating social media use can be developed. Cooperative mentorship, as a concept, offers an opportunity to connect research and practice through participatory design and it deserves further consideration.ConclusionsPrevailing approaches to cyber safety education tend to focus on risk management and in doing so, they maintain hierarchical forms of parental control. Adhering to such methods fails to acknowledge young people’s expertise and further deepens generational misunderstanding over social media use. Rather than insisting on hierarchical and traditional roles, there is a need to recognise and leverage asymmetrical expertise within the family in regards to social media.Cooperative and asymmetrical mentorship happens naturally in the family and can be facilitated by and through social media. The inverted hierarchy of expertise we have described here puts both parents and children, in a position of constant negotiation over social media use. This negotiation is complex, relational, unpredictable, open toward emergent possibilities and often intensive. Unquestionably, it is clear that social media provides opportunities for negotiation over, and inversion of, traditional family roles. Whether this inversion of expertise is real or only perceived, however, deserves further investigation. This article formulates some of the conceptual groundwork for an empirical study of family dynamics in relation to social media use and rulemaking. The study aims to continue to probe the positive potential of cooperative and asymmetrical mentorship and participatory design concepts and practices. The idea of cooperative mentorship does not necessarily provide a universal solution to how families negotiate social media use, but it does provide a new lens through which this dynamic can be observed. Clearly family dynamics, and the parent-child relationship, in particular, can play a vital part in supporting effective digital citizenship and wellbeing processes. Learning about this spontaneous and natural process of family negotiations might equip us with tools to inform policy and practices that can help parents and children to collaboratively create ‘a networked world in which they all want to live’ (boyd). ReferencesAmbrosetti, Angelina, and John Dekkers. "The Interconnectedness of the Roles of Mentors and Mentees in Pre-Service Teacher Education Mentoring Relationships." 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