Negotiated rulemaking
Encyclopedia
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.
procedures had become too adversarial. Phillip Harter, an administrative law expert, developed reg neg to allieviate the “malaise” that hindered the existing federal rulemaking process. The U.S. Environmental Protection Agency and the U.S. Department of the Treasury 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 (Reg Neg Act), "to encourage agencies to use negotiated rulemaking when it enhances the informal rulemaking process." The Reg Neg 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 reg neg, President Clinton encouraged agencies to use the approach in Executive Order #12866 and in a subsequent Presidential Memorandum.
A variety of federal government
agencies have successfully used reg neg, 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.
The decision to use negotiated rulemaking is based on a number of factors, including whether it is likely that a balanced committee can be formed and whether it is reasonable to believe that the committee will reach a consensus recommendation for a proposed rule. The agency’s resources are also considered.
The use of a convener to determine the feasibility of undertaking a negotiated rulemaking is authorized under the Negotiated Rulemaking Act. A convener may also recommend a list of stakeholder representatives for participation on the reg neg advisory committee. Sometimes, the agency compiles its own list. Regardless, the proposed advisory committee members and the issues to be negotiated are published in the Federal Register and subject to public comment. People who feel they are under-represented on the committee can request membership.
Reg Negs are facilitated by a public policy mediator. Once established under the Federal Advisory Committee Act
, the committee prepares a set of ground rules, which include the committee’s deadline, mission, responsibilities, commitments, and a decision rule or definition of consensus. A final list of the issues to be negotiated is also created, and negotiators are provided with relevant background materials. With the public policy mediator providing focus and managing the negotiations, the committee discusses each issue striving for agreements in concept, which government staff draft as regulatory text. This draft text is reviewed and revised until a tentative consensus agreement is reached. If an early consensus cannot be reached, the drafting team outlines multiple options discussed. When tentative agreements are reached on all issues, the agreements are checked for consistency before final consensus is achieved. Negotiated rulemaking typically takes six months to a year and involves multi-day meetings approximately once a month.
One long-time critic of reg neg is Cary Coglianese of the University of Pennsylvania Law School. Coglianese asserts that negotiated rulemaking consumes more agency resources than notice-and-comment rule making. He noted that of the 12 EPA rules developed using reg neg by 1997, six resulted in court challenges. Harter found fundamental flaws with Coglianese’s research, notably that he “misapplies his own methodology, incorrectly measures the duration of several negotiations, and fails to differentiate among different types of judicial challenges to negotiated rules.”
Another criticism of negotiated rulemaking is that it subverts the public interest because special interest groups
have too much sway. 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.
Advocacy group
Advocacy groups use various forms of advocacy to influence public opinion and/or policy; they have played and continue to play an important part in the development of political and social systems...
negotiate the terms of a proposed administrative rule. The agency publishes the proposed rule in the Federal Register
Federal Register
The Federal Register , abbreviated FR, or sometimes Fed. Reg.) is the official journal of the federal government of the United States that contains most routine publications and public notices of government agencies...
and then follows the usual rulemaking
Rulemaking
In administrative law, rulemaking refers to the process that executive and independent agencies use to create, or promulgate, regulations. In general, legislatures first set broad policy mandates by passing statutes, then agencies create more detailed regulations through rulemaking.By bringing...
procedure of soliciting public comments, which are evaluated for inclusion in the final rule.
Origins
Negotiated rulemaking, sometimes abbreviated as "reg neg," began in the early 1980s because of a concern that traditional rulemakingRulemaking
In administrative law, rulemaking refers to the process that executive and independent agencies use to create, or promulgate, regulations. In general, legislatures first set broad policy mandates by passing statutes, then agencies create more detailed regulations through rulemaking.By bringing...
procedures had become too adversarial. Phillip Harter, an administrative law expert, developed reg neg to allieviate the “malaise” that hindered the existing federal rulemaking process. The U.S. Environmental Protection Agency and the U.S. Department of the Treasury 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
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
enacted the Negotiated Rulemaking Act of 1990 (Reg Neg Act), "to encourage agencies to use negotiated rulemaking when it enhances the informal rulemaking process." The Reg Neg Act was reauthorized in 1996 and is now incorporated into the Administrative Procedure Act
Administrative Procedure Act
The Administrative Procedure Act , , is the United States federal law that governs the way in which administrative agencies of the federal government of the United States may propose and establish regulations. The APA also sets up a process for the United States federal courts to directly review...
, at 5 U.S.C. §§ 561-570.
A believer in the effectiveness of reg neg, President Clinton encouraged agencies to use the approach in Executive Order #12866 and in a subsequent Presidential Memorandum.
A variety of federal government
Federal government
The federal government is the common government of a federation. The structure of federal governments varies from institution to institution. Based on a broad definition of a basic federal political system, there are two or more levels of government that exist within an established territory and...
agencies have successfully used reg neg, 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.
Procedure
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.The decision to use negotiated rulemaking is based on a number of factors, including whether it is likely that a balanced committee can be formed and whether it is reasonable to believe that the committee will reach a consensus recommendation for a proposed rule. The agency’s resources are also considered.
The use of a convener to determine the feasibility of undertaking a negotiated rulemaking is authorized under the Negotiated Rulemaking Act. A convener may also recommend a list of stakeholder representatives for participation on the reg neg advisory committee. Sometimes, the agency compiles its own list. Regardless, the proposed advisory committee members and the issues to be negotiated are published in the Federal Register and subject to public comment. People who feel they are under-represented on the committee can request membership.
Reg Negs are facilitated by a public policy mediator. Once established under the Federal Advisory Committee Act
Federal Advisory Committee Act
The Federal Advisory Committee Act is a United States federal law , which governs the behavior of federal advisory committees. There are now approximately 1,000 such committees...
, the committee prepares a set of ground rules, which include the committee’s deadline, mission, responsibilities, commitments, and a decision rule or definition of consensus. A final list of the issues to be negotiated is also created, and negotiators are provided with relevant background materials. With the public policy mediator providing focus and managing the negotiations, the committee discusses each issue striving for agreements in concept, which government staff draft as regulatory text. This draft text is reviewed and revised until a tentative consensus agreement is reached. If an early consensus cannot be reached, the drafting team outlines multiple options discussed. When tentative agreements are reached on all issues, the agreements are checked for consistency before final consensus is achieved. Negotiated rulemaking typically takes six months to a year and involves multi-day meetings approximately once a month.
Successes and critiques
Public policy mediator Susan Podziba notes that negotiated rulemaking allows the benefits of face-to-face interaction and cooperation. It also allows all parties to share information and take advantage of the different skill sets of committee members. Research conducted by Dr. Laura Langbein of the School of Public Affairs at American University indicates that rules developed through reg neg were of better quality, more accurate and timelier than rules created using the traditional process.One long-time critic of reg neg is Cary Coglianese of the University of Pennsylvania Law School. Coglianese asserts that negotiated rulemaking consumes more agency resources than notice-and-comment rule making. He noted that of the 12 EPA rules developed using reg neg by 1997, six resulted in court challenges. Harter found fundamental flaws with Coglianese’s research, notably that he “misapplies his own methodology, incorrectly measures the duration of several negotiations, and fails to differentiate among different types of judicial challenges to negotiated rules.”
Another criticism of negotiated rulemaking is that it subverts the public interest because special interest groups
Special Interest Group
A Special Interest Group is a community with an interest in advancing a specific area of knowledge, learning or technology where members cooperate to effect or to produce solutions within their particular field, and may communicate, meet, and organize conferences...
have too much sway. 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.